Title of procedure - Web viewRe-instate the clockwise direction of travel for all vessels with an engine ... The proposed operating rule prohibiting jet skis from travelling

Waterway Rule Decision448-2016-WR

Decision relating to a request for the making of a

waterway rule – Little Lake Boort

Waterway: Little Lake Boort

Waterway manager: Loddon Shire Council

Waterway rule decision: 448-2016-WR

Decision made by: Rachel GualanoDeputy Director OperationsDelegate of the Director, Transport Safety

Date of decision: 28/10/2017

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 3 of the Marine Act 1988, the Minister for Ports, by Order published in the Government Gazette, has declared Loddon Shire Council to be the appointed waterway manager for the waters of Little Lake Boort. Loddon Shire Council became waterway manager of Little Lake Boort in 1996.

1.2 The nature of the waterwayLittle Lake Boort covers an area of around 72 hectares and is situated within the township of Boort in north-west Victoria approximately 87 km north west of Bendigo. The lake is adjacent to Lake Boort Wildlife Reserve, that has extremely high cultural heritage value, and is separated from Lake Boort to the south east by an irrigation channel and roadway. Locally these two lakes are known as the ‘Big Lake’ and ‘Little Lake’. Little Lake Boort is maintained as a permanent open freshwater lake, is a highly valued wetland and also important to the township of Boort for recreational, social and economic values.

Little Lake Boort is a popular spot for fishing, boating, water skiing, sailing and swimming. Facilities along the foreshore include a caravan park, walking trails and picnic areas. There are two boat ramps providing vessel access to the lake. There is also a sailing/angling club and a power-boat & ski club.

1.3 History of the waterway rulesThe current waterway rules for Little Lake Boort are detailed in Schedule 53 of the Notice under Section 15(2) of the Marine Act 1988 (Vic) published in the Victoria Government Gazette S221 on 28 June 2012.

Waterway rules in Schedule 53 were created prior to 1988 (before the Marine Act 1988) when the Little Lake Boort was under the control of the Council of the Shire of Gordon and re-gazetted again in May 1993. In 1997 Loddon Shire Council recommended amendments to remove the water-ski access lane and adopt the standard State rule of 5 knot speed restriction within 30 metres of the water’s edge. These changes were made in October 1997 and also included redefining the area prohibited to vessels and, due to an oversight, accidental removal of the direction of travel (clockwise) rule.

In December 1999 the Marine Board of Victoria revised the standard 5 knot/30 metre rule to 5 knots within 50 metres of the water’s edge on inland waters. In January 2000 amendments were made on the recommendation of Loddon Shire Council to retain the 5 knot speed restriction zone within 30 metres of the water’s edge for Little Lake Boort.

The current waterway rules in Schedule 53 for Little Lake Boort include an exclusion from the State rule 3(a) 5 knots within 50 metres of the water’s edge (53.1), a 5 knot speed restriction within 30 metres of the water’s edge (53.2) and an area prohibited to vessels (53.3).

Waterway Rule Decision Page 2 of 20Schedule 53 Little Lake Boort

2. Application to make waterway rules

On 19 August 2016, Loddon Shire Council submitted a Notice of Intention to Request a Waterway Rule1 to the Director, Transport Safety (Safety Director).

The proposal submitted by Loddon Shire Council is to amend the existing waterway rules for Little Lake Boort as follows:

Create a new special purpose area for the purpose of slalom water skiing (in the area specified approximately 250m east of the Boort Sailing Club boat ramp) subject to the following operating rules:(a) the slalom course must only be used in the direction of the Lake rules;(b) vessels not engaged in slalom skiing must slow to 5 knots with 50 metres of a vessel engaged in slalom skiing on the slalom course;(c) only one vessel is allowed on the slalom course at a time;(d) vessels are prohibited from towing kneeboard and ski tubes through the slalom course(e) jet skis are prohibited from travelling through the slalom course.

Reinstate the clockwise direction of travel rule for all vessels with an engine used for propulsion.

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)—

1 MSA s193 (1) and (2)Waterway Rule Decision Page 3 of 20Schedule 53 Little Lake Boort

(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.(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—

(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


After assessing 2 the Notice of Intention to Request a Waterway Rule received from Loddon Shire Council, 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 request was within the powers of the Safety Director and was material in nature, Loddon Shire Council 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

Loddon Shire Council undertook the required public consultation in relation to the proposed waterway rules from 10 September 2016 until 14 October 2016. Notices inviting submissions were published in the Loddon Times, the Bendigo Advertiser and on the Loddon Shire Council website.

It is noted that Loddon Shire Council did not advertise the proposed waterway rules in a newspaper circulating generally throughout the State as required and did not request an exemption from this requirement.

However in consideration of the provisions of section 260(1)4 of the MSA and given that Little Lake Boort is not of State significance and is of more significance locally, in this instance an exemption has been granted retrospectively (see Appendix 1), as I believe the relevant stakeholders have been consulted and the requirement has been substantially complied with and adequately achieved. Had an exemption been applied for prior to the public consultation it would have been provided.

In addition, in this particular circumstance compliance now would be impractical and unnecessary as there would be no benefit in repeating the public consultation and advertising state-wide due to the significant costs involved and mostly likely the outcome would be the same as the public consultation already undertaken.

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 17 October 2016. A copy of the Request is provided in Appendix 2.

2 Required under s193 MSA3 MSA s1964 Under section 260(1) the Safety Director may, by notice in writing to any person affected, exempt any person or vessel from any requirement of the MSA if the Safety Director decides-

that the requirement has been substantially complied with; or that the purposed of the requirement has been adequately achieved; or that compliance would, in the particular circumstances, be impractical, unnecessary, or inappropriate.


In making its request for waterway rules Loddon Shire Council 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.

Loddon Shire Council submitted the Requests in writing, with the required information including drafts of the proposed waterway rules.

6.1 Description of the proposed waterway ruleLoddon Shire Council submitted the following proposed waterway rules for Little Lake Boort:

Create a special purpose area for the purpose of slalom water skiing (in the area specified approximately 250m east of the Boort Sailing Club boat ramp) subject to the following operating rules:(a) the slalom course must only be used in the direction of the Lake rules;(b) vessels not engaged in slalom skiing must slow to 5 knots with 50 metres of a vessel engaged in slalom skiing on the slalom course;(c) only one vessel is allowed on the slalom course at a time;(d) vessels are prohibited from towing kneeboard and ski tubes through the slalom course(e) jet skis are prohibited from travelling through the slalom course.

Re-instate the clockwise direction of travel for all vessels with an engine used for propulsion.

6.2 Mandatory considerations5

6.2.1 Safety risk the proposed rules are intended to minimise or eliminateLoddon Shire Council has identified the following safety risks and issues that the new proposed waterway rules seek to address:

Establishing a designated slalom course seeks to accommodate a broader range of user groups on the lake in a balanced, safe and equitable manner.

Establishing a special purpose zone to facilitate slalom skiing is required in order to provide a delineated and safe area for this activity, separate to general skiing on the waterway.

It is considered necessary to separate general skiing activities on the Lake from the special purposed area so as to minimise the risk of interaction between skiers and other vessels as well as infrastructure associated with the establishment of slalom courses.

Given the unpredictable movement of skiers engaging in slalom activities and the need to operate within a constructed course, delineation of this area is required so as to ensure user awareness of potential vessels, skiers or hazards associated with course establishment and usage (i.e. placement of marker buoys, direction of use, etc.).

5 MSA s187 (1) (a)Waterway Rule Decision Page 7 of 20Schedule 53 Little Lake Boort

The positioning of the proposed slalom course has been selected so as to minimise interference with the general use of the lake for skiing whilst maintaining adequate separation form the water’s edge.

Vessels undertaking general activities on the lake will also be able to maintain adequate separation whilst continuing to engage in uninterrupted skiing or recreational activities.

Operation of the slalom course in accordance with the rules and position proposed was trialled over the previous two summers periods (2014 & 2015). The result of this trial has identified that slalom course operation can safely be conducted in conjunction with normal use of the lake. As a result it is now proposed to formally gazette the location and operational rules.

As part of an audit conducted by Transport Safety Victoria (TSV) on 17 October 2011 it was highlighted that the direction of travel be changed to match the standard direction of travel for Victorian waterways. The current direction being clockwise has been in place for some time and was gazetted back in 1993 as a rule under Schedule 53. Changing the rule to match the state direction of anti-clockwise will only create confusion with waterway users.

Loddon Shire Council believes a defined special purpose area will facilitate separation of both general skiing and recreational vessels from those vessels and persons engaged in slalom skiing, that it will greatly assist in the prevention of collisions between vessels or skiers and provide clarity and better understanding for local waterway users. It also believes formally establishing the direction of travel which has been marked by signs for the past 30 years without any contention from waterway users, will ensure all waterway rules for Little Lake Boort are properly gazetted and subsequently enforceable.

6.2.2 AlternativesLoddon Shire Council believes there are no alternative ways to address the safety risks the proposed rules intend to address.

6.2.3 Benefits and costsLoddon Shire Council believes the two proposed rules will not involve any costs as the existing signage around the lake displays the current clockwise direction of travel that has been in place for some time.

Loddon Shire Council has not identified any additional benefits of introducing the proposed waterway rules, other than to address the safety risks and issues as already outlined.

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

Loddon Shire Council received no submissions in relation to the proposed waterway rules. The proposed rules have not been amended following the public consultation.

7. Compliance with Marine Safety Act waterway rule making process

Loddon Shire Council has complied with the requirements of the MSA, including public consultation; aside from not advertising the proposed waterway rules in a newspaper


circulating generally throughout the State. As outlined previously an exemption has been granted retrospectively in accordance with of the provisions of section 260(1)6 of the MSA.

Loddon Shire Council 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.

8.1 Mandatory considerations

8.1.1 Safety risk the proposed rule is intended to minimise or eliminateLoddon Shire Council has identified safety issues associated with vessel operations and navigational safety on the waters of Little Lake Boort that warrant a change to the existing rules.

Loddon Shire Council granted permission for the Boort Ski Club to establish a temporary slalom water-ski course on the southern side of Little Lake Boort on a trial basis in September 2014. The proposed special purpose zone for the slalom ski course will formalise the slalom course zone that has been operating on a trial basis over the past two boating seasons. The zone seeks to improve safety through a designated area for this specific activity, to reduce the potential for interaction between vessels and slalom skiers, to reduce the risk of vessel traffic colliding with the slalom course infrastructure and maximise safety for slalom skiers by creating a zone for their activity away from other vessel traffic (and vice versa). The proposed associated operating rules in the special purpose area complement the safe operation of a slalom course and also seek to improve safety and protect infrastructure by prohibiting the use of the slalom course from other towed activity, i.e. kneeboards and ski tubes.

The proposed operating rule prohibiting jet skis from travelling though the slalom course is not warranted as by creating an exclusive use & special purpose area for the purpose of slalom water skiing, it effectively prohibits all vessels that are not towing a water-skier. In addition, a personal water craft (PWCs) is a vessel that is capable of towing a water-skier and should not be excluded from this activity. In making waterway rules the Safety Director must have regard to the principles of the MSA. Section 21 of the MSA outlines the principle of equity of use of Victorian waterway, as the use of State waters will not be unduly favoured to the detriment of other users of those waters. For these reasons, I do not support the operating rule to prohibit jet skis from travelling though the slalom course.

The direction of travel on all Victorian Inland Waters is anti-clockwise unless otherwise stated in local rules. A waterway audit undertaken by Transport Safety Victoria in October 2011 identified that the waterway rules for Little Lake Boort (no direction of travel rule) and the signs displayed at the lake showing a clockwise direction of travel were contradictory. 6 Under section 260(1) the Safety Director may, by notice in writing to any person affected, exempt any person or vessel from any requirement of the MSA if the Safety Director decides-

that the requirement has been substantially complied with; or that the purposed of the requirement has been adequately achieved; or that compliance would, in the particular circumstances, be impractical, unnecessary, or inappropriate.


The audit report recommended the signs should be replaced urgently or the scheduled rules amended to state the direction of travel is clockwise. Regardless vessel operations at the lake have continued in a clockwise direction. Subsequent investigation has revealed that the direction of travel rule had been in the schedule previously and was accidentally removed from the scheduled rules in October 1997. Re-instating the rule will correct the error and formally recognise the direction of travel as clockwise to reflect current operating conditions as has been the case for many years at Little Lake Boort.

After considering the safety issues I am of the view that the waterway rules proposed by Loddon Shire Council (excluding the proposed clause (e)), address the safety issues at Little Lake Boort. Waterway rules which are reinforced by appropriate navigational aids and signage represent an appropriate response to the safety issues.

8.1.2 Alternative ways to address risks and safety issuesLoddon Shire Council believed there are no alternative measures to the proposed waterway rules, however there are some alternative options to making rules to consider.

Leaving the slalom course as an informal area that is marked appropriately is an option that works on some waterways, but in this instance was not considered adequate to effectively separate slalom skiing from general water skiing and other waterway users and protects the risk to and from the course infrastructure. Making the area a permanent formal special purpose area is preferred by the waterway manager and will help to maximise safety.

An alternative to the direction of travel rule is to replace the signage and adopt the standard anti-clockwise direction of travel on all Victorian Inland Waters as identified in the audit report. However due to the informal clockwise direction being a local established practice for some time changing this would be inappropriate, create confusion and increase risk of collision for vessels operators. Formalising the rule is the safest option in this instance.

After considering the limited possible alternatives to the proposed waterway rules the introduction of the waterway rules, is an appropriate response to the risks and safety issues identified.

8.1.3 Benefits and costsThe proposed special purpose area for slalom skiing on Little Lake Boort is expected to benefit waterway users by effective separation of risks associated with slalom water-skiing activity and other vessels and activities and reducing the potential risk for interaction with the constructed slalom course. Slalom skiers will benefit from a relatively safe operating area to undertake their activity without the threat of interaction with other vessels and skiers.

The costs associated with special purpose area for slalom skiing relate to monetary costs associated with the installation of appropriate navigational aids and signage and the cost of equity of use as the area will not be accessible to all vessels and waterway users. However, the later will in fact mitigate the hazards posed to other vessels and waterway users by the slalom course and slalom water-ski activity. Also the special purpose area is a relatively small area considering the size of the lake, with adequate area accessible for all vessels and waterway users.

Reinstating the direction of travel rule to clockwise will maintain the status quo with no specific costs or benefits identified.

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


8.2 Summary of submissions or comments7

Loddon Shire Council did not receive any submissions in relation to the proposed waterway rules for Little Lake Boort.

9. Safety Director’s Decision

I, Rachel Gualano, Deputy Director Operations, (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)

I have decided to make the waterway rules as requested by Loddon Shire Council for Little Lake Boort, with the exception of proposed rule “(e) jet skis are prohibited from travelling through the slalom course”.

10. Reasons for Decision

Loddon Shire Council has identified the safety risks to vessel operators on Little Lake Boort and proposed a balanced approach to addressing these risks while at the same time recognising the expected costs and benefits associated with the introduction of new waterway rules.

Loddon Shire Council has undertaken the required public consultation locally and addressed the mandatory considerations (i.e. the safety risk, alternative ways of addressing the risk, and the associated benefits and costs).

The rules represent an appropriate response to address the safety issues for waterway users to reduce the safety risks associated with slalom water-skiing activity and the constructed slalom course, reflect current waterway use and are contemporary in nature given the current and projected usage of the waterway.

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.

RACHEL GUALANODeputy Director OperationsDelegate of the Director, Transport SafetyDated: 28/10/2017

7 MSA s187 (1) (b)Waterway Rule Decision Page 11 of 20Schedule 53 Little Lake Boort

Appendix 1 - Copy of exemption from section 196(2)(a)(i) – publishing notice state-wide


Appendix 2 - Copy of the Request to Make a Waterway Rule









Documents

Title of procedure - Web viewRe-instate the clockwise direction of travel for all vessels with an engine ... The proposed operating rule prohibiting jet skis from travelling