Waterway Rule Decision242--2014-WR

Decision relating to a request for the making of a

waterway rule – Local Port of Gippsland Lakes-

Hopetoun Channel

Waterway: Local Port of Gippsland Lakes

Waterway manager: Gippsland Ports Committee of Management Inc

Waterway rule decision: 242--2014-WR

Decision made by: Peter CorcoranDirector Maritime SafetyDelegate of the Director, Transport Safety

Date of decision: 6 December 2016

This document is a summary provided for information purposes only. No warranty or representation is made that the data or information contained in this document is accurate, reliable, complete or current or that it is suitable for a particular purpose. This document should not be relied upon as a substitute for the relevant legislation, legal or professional advice.

Published by Transport Safety VictoriaLevel 15, 121 Exhibition StreetMelbourne, Victoria 3000Telephone: 1800 223 022© Copyright State Government of Victoria 2014.This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.Authorised by the Victorian Government, Melbourne

1. The Waterway Manager and the Waterway

1.1 The appointed waterway managerIn accordance with Section 6 of the Marine Safety Act 2010, the Minister for Ports, by Order published in the Government Gazette, has declared Gippsland Ports Committee of Management Inc to be the appointed waterway manager for the waters of Local Port of Gippsland Lakes.

1.2 The nature of the waterwayThe Local Port of Gippsland Lakes is a very popular boating destination, attracting power boats, water skiers, sailing vessels, kayakers and a number of associated maritime pursuits. Gippsland Lakes covers 420 square kilometres from Sale to Lakes Entrance, and provides a safe passage to Bass Strait since the entrance was opened in 1989.

The Hopetoun Channel is a popular transiting channel between Reeves Channel (and thence to Cunninghame Arm and North Arm), and Rigby Channel at the western end of Rigby Island. A wide variety of activities occur in the channel from transiting by a large variety of vessels, water skiing, human powered vessel activities and prawning both commercial and recreational. There are extensive pole moorings in the mid-section of the channel adjacent to the Barrier Landing used by cabin cruisers. The area experiences high tidal flows, dynamic sandbanks and shoaling with the channel bounded by shoals, rocks and shallow water at low tide. The area affected by this waterway rule is close to the entrance to the Gippsland Lakes and the Lakes Entrance Bar.

Vessel operations at times of darkness mainly relate to transiting, prawning operations and vessels mooring on the southern side of the channel.

History of the waterway rulesThe current waterway rules for the Local Port of Gippsland Lakes are detailed in Schedule 104 of the Notice under Section 15(2) of the Marine Act 1988 (Vic) published in the Victoria Government Gazette S221 on 28 June 2012.

The waterway rules in Schedule 104 in relation to the Hopetoun Channel include an exclusion from 5 knots within 200 metres of the water’s edge (104.1) in the middle section of the channel and the western end of the channel, and two 5 knot speed restriction zones:

The rules covering the eastern end of Hopetoun Channel leading into Reeves channel were introduced in 1988, and

in the western section of Hopetoun Channel in 2006.

The waterway rules in Schedule 104 covering the Local Port of Gippsland Lakes were initially introduced under the Marine Act 1988, when the waters were under the control of the Port of Melbourne Authority.

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2. Application to make waterway rules

On 11 September 2014, Gippsland Ports Committee of Management Inc submitted a Notice of Intention to Request a Waterway Rule1 to the Director, Transport Safety (Safety Director).

The proposal submitted by Gippsland Ports Committee of Management Inc is to amend the existing waterway rules for the Hopetoun Channel, Local Port of Gippsland Lakes by creating a 5 knot speed limit on the waters of the Hopetoun Channel between the hours of one hour after sunset and one hour before sunrise. (A map of the area of Hopetoun Channel where the proposed speed limit applies is provided in Appendix 2).

The proposal submitted is one of several rule changes, the others being:

Amending the 5 knot speed limit area for daylight hours operations,

Creating a transit only zone for vessels operating in the Reeves Channel and the entrance, and

Exempting certain domestic commercial vessels from anchoring in the Hopetoun Channel.

3. Marine Safety Act requirements for waterway rule making

The Marine Safety Act 2010 (Vic) (MSA) details the process that must be followed when a port management body, local port manager or waterway manager proposes to introduce or amend waterway rules, (Appendix 1).

Section 193 of the Marine Safety Act 2010 details the process and considerations for assessment of a Notice of Intention to Request a Waterway Rule

Initial consideration and advice by Safety Director in relation to certain requests

(1) Before making a request for the making of a rule under section 194, a port management body, local port manager or waterway manager must notify the Safety Director of the body's or manager's intention to make the request.

(2) A notification under subsection (1)—(a) must be in writing; and(b) must contain the following information—

(i) the name and address of the body or manager; and(ii) a description of the rule that the body or manager proposes be

made; and(iii) a statement of the nature and scope of the matter that is

proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(c) may be accompanied by a draft of the proposed rule.(3) On receiving a notification under subsection (1), the Safety Director must—

(a) consider whether the rule that is proposed to be requested—(i) appears to be within the powers conferred on the Safety

Director to make the rule; and(ii) is of a material nature or a non-material nature; and

(b) within 2 weeks after receiving a notification under subsection (1)—(i) advise, in writing, the port management body, local port

manager or waterway manager of the matters under subsection (5), (6) or (7), as the case requires; and

(ii) publish notice of the advice in the Government Gazette.

1 MSA s193 (1) and (2)Waterway Rule Decision Page 3 of 18Schedule 104 Local Port of Gippsland Lakes

(4) An advice under this section must set out the reasons of the Safety Director as to the matters under subsection (5), (6) or (7), as the case requires.

(5) If the Safety Director is of the view that the rule that is proposed to be requested appears to be within the powers conferred on the Safety Director to make the rule and is of a material nature, the Safety Director must advise the port management body, local port manager or waterway manager—(a) of that view; and(b) that it must comply with section 196 before making a request for the

making of the rule under section (6) If the Safety Director is of the view that the rule that is proposed to be

requested appears to be within the powers conferred on the Safety Director to make the rule and is of a non-material nature, the Safety Director must advise the port management body, local port manager or waterway manager—(a) of that view; and(b) that it is not required to comply with section 196 before making a

request for the making of the rule under section 194.(7) If the Safety Director is of the view that the rule that is proposed to be

requested does not appear to be within the powers conferred on the Safety Director to make the rule, the Safety Director must advise the port management body, local port manager or waterway manager of that view.

Section 188 of the MSA requires that reasons must be given for making or not making a rule:

(1) The Safety Director must publish his or her decision whether to make a rule under section 184 on the Safety Director's Internet site.

(2) A decision that is published under subsection (1) must contain a statement of the reasons of the Safety Director for making or not making the rule, including—(a) a description of the matter that was addressed by the request or

proposal for the making of the rule; and(b) the Safety Director's conclusions after having regard to the mandatory

considerations.

Section 187(1) of the MSA requires that when making a rule:

the Safety Director must have regard to—(a) the mandatory considerations; and (b) if the rule is being made following a request from a port management body,

local port manager or waterway manager, the summary of submissions or comments received by that body or manager under section 194; and

Mandatory Considerations are defined in section 183 Definitions of the MSA. In relation to a proposed waterway rule, mandatory considerations means—

(a) the safety risk, or the nature and level of a safety risk, that the proposed rule is intended to minimise or eliminate;

(b) whether there are alternative ways (legislative or otherwise) to address the matter being or to be addressed by the proposed rule;

(c) the expected benefits and costs of the proposed rule on those persons likely to be affected by the proposed rule, if made;

Section 196 of the MSA requires a waterway manager to consult before requesting rule:

(1) Subject to this Part, before requesting the making of a rule under this Part, a port management body, local port manager or waterway manager must invite submissions and comments in relation to the proposed request from the public in accordance with this section.

(2) The port management body, local port manager or waterway manager must—(a) publish notice of the proposal to request the making of a rule—

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(i) in a newspaper circulating generally throughout the State; and(ii) on the body's or manager's Internet site; and

(b) make copies of the proposal available to the public on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(3) A notice under subsection (2)(a) must—(a) include a summary of the proposal; and(b) specify the date by when a submission or comment must be made to

the port management body, local port manager or waterway manager; and

(c) specify how a submission or comment must be made; and(d) specify that copies of the proposal are available on the body's or

manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(4) The period of time between publication of the notice and the date specified in the notice must not be less than 4 weeks.

(5) The port management body, local port manager or waterway manager must, in formulating its request for the making of a rule, take into account every submission or comment it receives by the date specified in the notice under subsection (2)(a).

Section 194 of the MSA – Requests for waterway rules

(3) A request for the making of a rule—(a) must be in writing; and(b) must contain the following information—

(i) the name and address of the body or manager making the request; and

(ii) a description of the rule that the body or manager proposes be made; and

(iii) a statement of the nature and scope of the matter that is proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(iv) an explanation of how the proposed rule addresses the mandatory considerations; and

(v) in the case where a port management body, local port manager or waterway manager has been advised of the matters under section 193(5)—(A) a list of submissions and comments received under

section 196; and(B) a summary of the matters raised in the submissions

and comments received under section 196; and(C) how the port management body, local port manager or

waterway manager has taken into account the submissions and comments that address the mandatory considerations; and

(c) must be accompanied by a draft of the proposed rule.

4. Safety Director’s determination of whether the proposed rule is within power or of a material nature

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After assessing 2 the Notice of Intention to Request a Waterway Rule received from Gippsland Ports Committee of Management Inc, I, Peter Corcoran, Director Maritime Safety, as a delegate of the Director, Transport Safety, determined that the proposed rules were:

within the powers of the Safety Director to make a rule, and

of a material nature (that is, not a correction of a minor error).

Given the determination that the requests were within the powers of the Safety Director and were material in nature, Gippsland Ports Committee of Management Inc was required to undertake the following public consultation3:

publishing notice of the proposed rule in a newspaper circulating generally throughout the state

inviting comments

publishing details of the proposal on the waterway manager’s internet site

making copies available to the public

allowing at least 4 weeks for receiving submissions.

5. Waterway manager’s public consultation

Gippsland Ports Committee of Management Inc undertook the required public consultation in relation to the new waterway rules from 12 February 2014 until 31 October 2014. Notices inviting submissions were published in the Herald Sun (a state wide newspaper) and on the Gippsland Ports Committee of Management Inc website.

6. Request to make waterway rules from the waterway manager

The Request for Making a Waterway Rule (Request) was received by Maritime Safety Victoria on 24 August 2015. Copies of the Requests are provided in Appendix 1.

In making its request for waterway rules Gippsland Ports Committee of Management Inc was required to:

Provide a description of the proposed rule and if it was amended following the public consultation

address the mandatory considerations

provide a list of submissions and detail matters raised in submissions, and

to explain how the waterway manager has taken into account the submissions and comments in addressing the mandatory considerations.

Gippsland Ports Committee of Management Inc. submitted the Request in writing, with the required information including a draft of the proposed waterway rules.

6.1 Description of the proposed waterway ruleGippsland Ports Committee of Management Inc submitted the following proposed waterway rules for the Hopetoun Channel:

2 Required under s193 MSA3 MSA s196Waterway Rule Decision Page 6 of 18Schedule 104 Local Port of Gippsland Lakes

All the waters of Hopetoun Channel bounded on the west by a line east of Barrier Landing, joining a 5 knot sign on the south shore and a 5 knot sign on the north shore, then east to a 5 knot sign on the southern shore 460m west of the inner end of the Western Entrance Wall and then to a 5 knot sign on the opposite shore, shall during the period commencing one hour before sunrise and ending one hour after sunset have a speed restriction of 5 knots".

The intention of the proposed rule is to mitigate the risk of high speed vessel interaction and potential collision between commercial fishing operations and recreational vessels.

6.2 Mandatory considerations4

6.2.1 Safety risk the proposed rules are intended to minimise or eliminate

Gippsland Ports Committee of Management Inc has identified the following safety risks and issues that the new proposed waterway rules seek to address

Commercial fishing operations occur at night on the ebb tide within the described area. These operations include stake net fishing for prawns. These activities occur from late November through to late April, coinciding with the summer recreational boating season. The area experiences high tidal flows, dynamic sandbanks and shoaling. The area is close to the entrance to the Gippsland Lakes and the Lakes Entrance Bar.

Imposing an "after dark" speed restriction mitigates the risk of high speed interaction between commercial fishing operations and recreational vessels.

The introduction of a 5 knot restriction at night will mitigate the risk of high speed interactions between transitting vessels, fishing operations and other waterway activities in a dynamic natural environment. This is compounded by lack of local knowledge of visitors and commercial prawning operations.

Gippsland Ports Committee of Management Inc is simultaneously applying for an exeption to the ColRegs on behalf of local commercial fisherman to authorise a limited incursion into the channel by fishing equipment under specific conditions.

Vessels travelling at 5 knots have greater time to observe hazards and react to prevent collisions in a narrow sinuous channel bounded by shoals, rock and unmarked sections. This area is traditionally used to transit between Lakes Entrance and Barrier Landing during busiest times of the season. The area is currently not speed restricted.

The proposed new rule will assist safe vessel operations by reducing the speed and wake of vessels, and giving vessel masters greater opportunity to stay clear of fishing operations. In addition, at slower speeds there is reduced potential for vessel damage and injury as a result of grounding.

As an additional safety measure, previously unlit beacons have recently been lit and four additional lit lateral mark buoys have been established to better define the channel, particularly at night.

Current activities at night are inherently unsafe and assessed as "high" risk due to unregulated speed, the nature of the channel and commercial fishing activities.

6.2.2 AlternativesGippsland Ports Committee of Management Inc considered two alternatives to address the safety risks the proposed rule intends to address.

4 MSA s187 (1) (a)Waterway Rule Decision Page 7 of 18Schedule 104 Local Port of Gippsland Lakes

Increasing boating activity in this area increases the likelihood and consequences of an incident. It was agreed by relevant agencies who took part in the risk assesment, that to 'do nothing' (status quo) is not an option.

Gippsland Ports Committee of Management Inc believes there are no other alternative measures to address the identified safety risks.

6.2.3 Benefits and costsGippsland Ports Committee of Management Inc nominated the following benefits of the proposed waterway rules:

Costs - Vessels transiting the area between the hours specified in the rule will be required to maintain a speed of 5 knots which will increase the journey time.

Benefits - Vessels transiting the area between the hours specified will be required to travel at 5 knots which will increase the time available to identify and react to hazards during hours of limited to no visibility.

Gippsland Ports Committee of Management Inc believes that the benefits of introducing the proposed waterway rules to address safety risks and issues far outweigh any associated costs.

6.3 How the waterway manager has taken into account the submissions and comments

Gippsland Ports Committee of Management Inc received four submissions in relation to the proposed waterway rules. Three were from organisations and one from an individual. Of the four submissions received, all were supportive of the proposed rule.

7. Compliance with Marine Safety Act waterway rule making process

Gippsland Ports Committee of Management Inc has complied with all the requirements of the MSA, including public consultation.

Gippsland Ports Committee of Management Inc has submitted the request for the making of a rule in writing, with the required information, including a draft of the proposed waterway rule.

8. The Safety Director's conclusions in making a decision whether to make or not make a waterway rule

In making a decision as a result of a request to make a waterway rule the Safety Director must have regard to;

the mandatory considerations, and the summary of submissions or comments received.

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8.1 Mandatory considerations

8.1.1 Safety risk the proposed rule is intended to minimise or eliminateGippsland Ports Committee of Management Inc has identified many safety issues associated with vessel operations during hours of darkness on the waters of the Hopetoun Channel.

Potential interactions between recreational vessels and commercial fishing vessels and their equipment some of which extends into the channel at night on the ebb tide is a significant safety issues especially if vessels are travelling at speeds greater than 5 knots.

Although these activities occur from late November through to late April the risks associated with potential vessel collisions exist at all times not just in the prawning season.

The growing popularity of the Barrier Landing has served to increase the use of the Hopetoun Channel by larger recreational vessels at all times.

The geographical characteristics of the channel such as a narrowing channel at low tide and the sandbanks in the channel support create additional safety issues for vessel operators.

The introduction of four additional lit lateral mark buoys will better help define the channel for all vessel operators but at the same time may give a degree of confidence to vessel operators that speeds in excess of 5 knots are safe operating speeds.

Ths safety issus associated with vessels operations at speeds over 5 knots are compounded by lack of local knowledge of visitors, and the extensive commercial prawning operations.

Any vessels travelling at 5 knots or more has less time to observe hazards and react to prevent collisions in a narrow channel bounded by shoals, rock and unmarked sections

The introduction of the proposed rule in addition to adressing potential collision situations will reduce the impacts of wake and wash on moored and berthed vessels and other vessels transiting the area.

Gippsland Ports Committee of Management Inc has also identified that at slower speeds there is reduced potential for vessel damage and injury as a result of grounding and less chance of entanglement with prawning nets.

The area identified as a 5 knot zone covers an existing area where there are no current speed restrictions, and an area at the eastern end of the channel which is already desiganted as a 5 knot speed restriction zone.

The rules proposed by Gippsland Ports Committee of Management Inc seek to improve safety for all vessel operators who use the Hopetoun Channel

After considering the safety issues I am of the view that the new waterway rules proposed by Gippsland Ports Committee of Management Inc address the safety issues for vessel operators using the Hopetoun Channel at times of darkness.

Waterway rules which are reinforced by appropriate navigational aids, signage and mapping represent an appropriate response to the identified safety issues at in the Hopetoun Channel. In this instance the installation of four additional lit lateral mark buoys will assist in the safe navigation of the channel.

8.1.2 Alternative ways to address risks and safety issuesGippsland Ports Committee of Management Inc has indicated that it believes there are no alternatives other than introducing a waterway rule

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In this instance the introduction of a waterway rule reinforced by appropriate navigational aids and signage provides clarity and certainty to all waterway users as to their obligations when operating in the Hopetoun Channel.

Although codes of conduct and general information to vessel operators are an important and necessary component in creating safe vessel operating environment, given the large number of visitors using the area especially in the summer boating months, which coincides with the prawning season, the introduction of a waterway rules is appropriate.

After considering the possible alternatives other than introducing a waterway I am of the opinion that the introduction of a waterway rule is the most appropriate response to the identified safety issues.

8.1.3 Benefits and costsIn considering the costs and benefits of the proposed waterway rules it is to expected that any costs associated with increased transit times are minimal when compared to the consequences of collisions or a marine incident that are a result of vessel speeds in excess of 5 knots.

Gippsland Ports Committee of Management Inc has adequately identified the benefits and costs of the proposed waterway rule.

There are additional costs for costs Gippsland Ports Committee of Management Inc with the introduction of the waterway rule and these relate to the installation of navigational aids and signage.

The benefits of the new waterway rules I believe outweigh any of the identified costs.

8.2 Summary of submissions or comments5

Gippsland Ports Committee of Management Inc received 4 formal submissions and all were in support of the waterway rules.

Gippsland Ports Committee of Management Inc in its Request provided a summary of the comments made in the submissions.

In reviewing how Gippsland Ports Committee of Management Inc has taken into account the submissions received I am of the view that the response is adequate, since there were no objections and only support for the proposed rules.

9. Safety Director’s Decision

I, Peter Corcoran, Director Maritime Safety, (as delegate of the Director, Transport Safety) hereby advise that, after having regard to:

the mandatory considerations, and

submissions received in relation to the proposed rules, and

having taken into account the Objectives and Principles of the Transport Integration Act 2010 (Vic)

5 MSA s187 (1) (b)Waterway Rule Decision Page 10 of 18Schedule 104 Local Port of Gippsland Lakes

I have decided to make the waterway rules as requested by Gippsland Ports Committee of Management Inc for the waters of the Hopetoun Channel within the Local Port of Gippsland Lakes by creating a new rule introducing a 5 knot speed limit one hour after sunset to one hour before sunrise.

10. Reasons for Decision

Gippsland Ports Committee of Management Inc has identified the safety risks to vessel operators in the Hopetoun Channel and proposed a balanced approach to addressing these risks while at the same time acknowledging the expected costs and benefits associated with the introduction of the new waterway rule. The proposed rules represent an appropriate response to address the safety issues on the waterway.

Gippsland Ports Committee of Management Inc has undertaken the required public consultation and addressed the mandatory considerations (i.e. the safety risk, alternative ways of addressing the risk, and the associated benefits and costs).

The final rule reflects due consideration of the safety issues for waterway users, and reduces the potential for unsafe interactions between vessels operating in the Hopetoun Channel in times of darkness.

The rule will be published in the Government Gazette and on the Safety Director’s internet site, in conjunction with installation and modifications to the navigational aids and signage by the waterway manager.

PETER CORCORANDirector, Maritime SafetyDelegate of the Director, Transport SafetyDated: 6 December 2016

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Appendix 1 - Copy of the Request to Make a Waterway Rule

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Appendix 2 – Hopetoun Channel

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