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 Gualano
Deputy Director Operations
Delegate 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 Victoria

Level 15, 121 Exhibition Street

Melbourne, Victoria 3000

Telephone: 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

1.1The appointed waterway manager

In accordance with Section 3 of the Marine Act1988, 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.

1.2The nature of the waterway

Little Lake Boort coversan area of around 72 hectares and is situated within the township of Boortin north-west Victoria approximately 87 km north west of Bendigo. The lake isadjacent to Lake Boort Wildlife Reserve, that has extremely high cultural heritage value,and isseparated from Lake Boort to the south east by an irrigation channel and roadway. Locally these two lakes are known asthe ‘Big Lake’ and ‘Little Lake’. Little Lake Boort is maintained as a permanent open freshwater lake, is a highly valued wetlandand 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, sailingand 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 apower-boat & ski club.

1.3History of the waterway rules

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

Waterway rulesin Schedule 53 were createdprior 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 removethewater-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 1997and 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 Boortinclude an exclusion fromthe 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).

2.Application to make waterway rules

On 19 August 2016,Loddon Shire Council submitted a Notice of Intention to Request a Waterway Rule[1] to the Director, Transport Safety (Safety Director).

The proposal submitted by Loddon Shire Councilis to amend the existingwaterway rules for Little Lake Boortas 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 rulefor 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 2010details 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.

(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 section196 before making a request forthe 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 section196; and

(B)a summary of the matters raised in the submissions and comments received under section196; 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 Councilwas required to undertake the following public consultation[3]:

  • 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 notadvertise 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 thatLittle 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 andthe requirement has been substantially complied with and adequately achieved. Had an exemption been applied forprior 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 sameas 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 Requestis provided in Appendix 2.

In making its request for waterway rules Loddon Shire Councilwas 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 Councilsubmitted the Requestsin writing, with the required information including drafts of the proposed waterway rules.

6.1Description of the proposed waterway rule

Loddon Shire Councilsubmitted the following proposed waterway rulesfor 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.

6.2Mandatory considerations[5]

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

Loddon Shire Councilhas 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.).
  • 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 Councilbelieves 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.