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Waterway Rule Decision258-2014-WR

Decision relating to a request for the making of a

waterway rule – Port Phillip, Clifton Springs

Waterway: Local Port of Port Phillip

Waterway manager: Parks Victoria

Waterway rule decision: 258-2014-WR

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

Date of decision: 26/5/2016

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 managerThe waters of Port Phillip are managed by three authorities. The Port of Melbourne Corporation manages the port waters of the Port of Melbourne, the Victorian Regional Channels Authority manages the port waters of the Port of Geelong and Parks Victoria manages the waters described as the Local Port of Port Phillip.

In accordance with Section 6 of the Marine Safety Act 2010, the Minister for Ports, by Order published in the Government Gazette, has declared Parks Victoria to be the appointed waterway manager for the waters of the Local Port of Port Phillip.

Parks Victoria has had waterway management responsibilities for the Local Port of Port Phillip since 1998.

1.2 The Nature of the WaterwayPort Phillip (also commonly referred to as Port Phillip Bay or (locally) just the Bay), is a large bay in southern Victoria, bordered by the city of Melbourne with over 3 million people living around its shore. It is the entrance to one of Australia's busiest ports and is one of Victoria's most popular recreational destinations.

The Bay is a large expanse of water covering 1,930 square kilometres and the shore stretches roughly 264 km. Although it is shallow for its size, most of the bay is navigable. Nearly half of Port Phillip is less than 8 metres deep and its greatest depth is 24 metres.

The eastern side of the Bay is characterised by sandy beaches extending from St Kilda, Sandringham, Beaumaris, Carrum, and down the Mornington Peninsula to Frankston, Safety Beach/Dromana and Rye to Portsea. On the western side of the bay there is a greater variety of beach types, seen at Queenscliff, St Leonards, Indented Head, Portarlington, and Eastern Beach, Corio Bay. Numerous sandbanks and shoals occur in the southern section of the bay, and parts of the South Channel require occasional maintenance dredging.

Port Phillip's mostly flat topography and moderate waves make perfect conditions for recreational swimming, fishing, kitesurfing, windsurfing, sailing, boating, scuba diving, stand up paddle boarding (SUP) and other sports. It is home to many yacht clubs, and also a number of marinas, including large marinas at St Kilda, Geelong and Brighton, and dozens of lifesaving clubs.

Clifton Springs is a coastal town located on the Bellarine Peninsula, near Geelong, overlooking Corio Bay. The section of coast is characterised by near continuous bluffs, and is fronted by a narrow beach and wide sand flats. The Clifton Springs boat harbour protected by a breakwater, situated off the northern end of Jetty Road, is a popular boat launching facility. On the western side of the harbour is a stretch of sandy beach, with a heritage listed dismantled pier, that has been renourished and is popular for swimming.

1.3 History of the waterway rulesThe current waterway rules for the Local Port of Port Phillip are detailed in Schedule 1 of the Vessel Operating & Zoning Rules. Schedule 1 was created under Section 185 of the Marine Safety Act 2010 (Vic) and published in the Victoria Government Gazette S142 on 5 June 2015.

Waterway Rule Decision of 21Local Port of Port Phillip – Clifton SpringsApril 2016

The waterway rules in Schedule 1 currently do not include any rules specific to the waters adjacent to Clifton Springs. The only rule applicable is clause 1.4.7, a 5 knot speed restriction within 200 metres of the water’s edge, excluding access lanes and areas prohibited to vessels, for all waters of South West Port Phillip.

2. Application to make waterway rules

On 13 October 2014 Parks Victoria submitted a Notice of Intention to Request a Waterway Rule1 (Notice) to the Director, Transport Safety (Safety Director).

In the Notice, Parks Victoria proposed a rule to create a new zone prohibiting vessels in the waters along the beach west of Clifton Springs Harbour commencing on the foreshore west of the breakwater entrance, and extending west along the foreshore to Griggs Creek and 200 metres seaward.

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.

Section 193 of the MSA details the process and considerations for assessment of a Notice of Intention to Request a Waterway Rule.

The process to be followed in relation to requests for the making of a waterway rule is set out in section 193 of the MSA:

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 Sections 193 (1) and (2), Marine Safety Act 2010 (Vic) refer.Waterway Rule Decision of 21Local Port of Port Phillip – Clifton SpringsApril 2016

(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 Marine Safety Act 2010 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 Marine Safety Act 2010 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 Marine Safety Act 2010. 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 Marine Safety Act 2010 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 Marine Safety Act 2010 – 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 assessing2 the Notice received from Parks Victoria, I, Peter Corcoran, Director, Director Maritime Safety, as a delegate of the Safety Director, determined that the proposed rule was:

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, Parks Victoria 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

On 29 January 2015, Parks Victoria requested an exemption from advertising the proposed waterway rules in a newspaper circulating generally throughout the state and instead proposed advertising in local newspapers, namely, the Bellarine Times, The Echo and Geelong Advertiser and displaying notices at Parks Victoria offices in the region.

The Director Maritime Safety granted the requested exemption, provided Parks Victoria also display notices at boat ramps in the area and notify relevant local clubs and waterway user groups of the proposed rule.

The required public consultation in relation to the new waterway rule ran from 5 March 2015 to 2 April 2015. Notices inviting submissions were published as stated (including publication in the Torquay Times) and on the Parks Victoria website. Also, local clubs and groups, State and local government and industry stakeholders were notified.

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 23 October 2015. A copy of the Request is provided in Appendix 1.

In making its request for waterway rules Parks Victoria was required to:

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

2 Required under s193 (3) MSA.3 MSA s196Waterway Rule Decision of 21Local Port of Port Phillip – Clifton SpringsApril 2016

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.

Parks Victoria submitted the Request in writing, with the required information including a draft of the proposed waterway rule.

6.1 Description of proposed waterway ruleParks Victoria submitted the following proposed waterway rule for the Local Port of Port Phillip that was amended from the rule initially detailed in the Notice:

create a new rule prohibiting vessels in the waters west of Clifton Springs Harbour commencing on the foreshore 30 metres west of the Clifton Springs boat ramp car park, and extending approximately 130 metres east along the foreshore and 200 metres seaward.

The amendment following the public consultation related to a reduction in size of the vessel prohibited zone from approximately 270 metres wide to approximately 130 metres wide, by moving the western boundary of the zone from Griggs Creek to 30 metres west of the Clifton Springs boat ramp car park (eastern boundary remains unchanged).

The intention of the proposed rule is to segregate swimmers within a specified area from vessel traffic by establishing a ‘no vessel zone’ on the renourished section of beach west of the launching facility at Clifton Springs boat harbour. The former jetty ruins are also located within this proposed ‘no vessel zone’ so it also separates vessels from this hazard.

6.2 Mandatory considerations4

6.2.1 Safety risk the proposed rule is intended to minimise or eliminateParks Victoria identified the following safety risks and issues that the proposed waterway rule seeks to address:

Minimises the risk of serious injury resulting from a collision between bathers and vessels by prohibiting the presence of vessels.

Minimises the risk of vessels colliding with the former jetty ruins

Minimises the risk of personal water craft (PWC) using the old jetty piles for slalom activities and colliding with them and people snorkelling around the jetty ruins.

Minimises risk to bathers and snorkelers without the presence of vessels.

6.2.2 AlternativesParks Victoria considers that the alternative is to leave the area with the existing 5 knot rule and believes this insufficient to address the safety risks associated with the use of the area. Also the alternative of monitoring and enforcement methods would be sporadic and provide insufficient safety guards given the popularity and increased usage of the area.

Parks Victoria believes that a ‘no vessel zone’ is the only effective way to reduce the likelihood of vessels coming into contact with swimmers and the former jetty ruins in this high use area.

6.2.3 Benefits and costs4 MSA s187 (1) (a)Waterway Rule Decision of 21Local Port of Port Phillip – Clifton SpringsApril 2016

Parks Victoria nominated the following benefits of introducing the waterway rule:

Increased safety for bathers and snorkelers without the presence of vessels.

More visually prominent zone with the installation of special mark piles and signage on the foreshore clearly marking it.

Increased understanding of the zone’s presence and consequently an increased voluntary compliance.

Increased level of compliance that will improve the safety of bathers and recreational vessels.

Parks Victoria did not identify any costs.

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

Parks Victoria received 9 submissions in relation to the proposed waterway rule. Many issues raised referred to the management of the adjacent foreshore and boat ramp facilities and not specifically about the proposed rule.

Common themes included:

Congestion of boat ramp users (recreational & commercial) and pedestrians/beach-goers

Jet skis currently utilise the proposed swimming zone.

Alternative sites for swimmers (‘no boating zones’)

Propose west of the old jetty as a boating/watercraft zone

Proposed new beach area (post harbour works) as a swimming only zone

Allow passive watercraft such as stand up paddle boards in swimming zone.

Utilisation of natural assets as delineators.

Requests for an exemption to transit through the ‘no vessels zone’

Parks Victoria recognised the submissions reinforced the need to balance recreational and commercial boating, boating and non-boating, and powered and non-powered vessel use of area. In considering the submissions Parks Victoria amended the proposed rule and addressed many of the issues by reducing the size of the proposed vessel prohibited area. The reduced size and location of the area maintains equitable access to the beach for boat ramp users and non-powered vessels launching from the beach within close proximity of the car park, while ensuring the busiest part of the beach adjacent to the car park remains a ‘no vessel zone’.

Parks Victoria applied the Boating Zones Framework principles (as per the Review of Port Phillip & Western Port Boating Zones). These principles support the use of a ‘no vessel zone’ to minimise the risk of collision between vessels and swimmers. The principles also uphold the definition of a vessel and do not permit any type of vessel use in a ‘no vessel zone’.

Parks Victoria did not support the themes raised in submissions in relation to:

Allowing non-powered, passive vessels in the vessel prohibited zone.The Boating Zones Framework principles do not support this.

An exemption to transit through the ‘no vessels zone’.This is against the Boating Zones Framework principles and has not been


implemented elsewhere on the bay. Also it can never be guaranteed a swimmer will not be in the zone at any given time.

Parks Victoria also considered an alternative/additional ‘no vessel zone’ east of the Clifton Springs Harbour, however due to lack of existing infrastructure and services, car parking, etc., in the area a ‘no vessel zone’ would be inconsistent with the Boating Zones Framework principles. Parks Victoria will continue to monitor use of this area and review pending improved access and facilities.

7. Compliance with Marine Safety Act waterway rule making process

Parks Victoria has complied with all the requirements of the MSA, including public consultation.

Parks Victoria 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 eliminateParks Victoria has identified some safety issues associated with vessel operation on the waters adjacent to Clifton Springs which the proposed rule seeks to address. Specifically, the risk of vessels colliding with swimmers, snorkelers and the old jetty piles at the popular swimming beach. Also, with a planned upgrade to the Clifton Springs boating harbour there is a potential for increased vessel traffic in the area.

The rule proposed by Parks Victoria seeks to improve safety through a designated area prohibiting vessels to reduce the potential for high risk interaction between swimmers and vessels, maximise navigational safety for vessels in the vicinity of the jetty ruins and maximise safety for swimmers and vessel operators by creating a zone for swimming away from vessel traffic. The creation of the zone should encourage bathing in a specific defined area.

After considering the safety issues I am of the view that the new waterway rule proposed by Parks Victoria addresses the safety issues at Clifton Springs. Waterway rules which are reinforced by appropriate navigational aids and signage represent an appropriate response to the safety issues identified and will enable the separation of swimmers from vessel traffic in the area prohibited to vessels.

8.1.2 Alternative ways to address risks and safety issuesParks Victoria believed that an alternative measure was to rely on the current 5 knot speed restriction and monitoring and enforcement methods, however this was not considered Waterway Rule Decision of 21Local Port of Port Phillip – Clifton SpringsApril 2016

adequate to address the safety issues effectively given the increased popularity and usage of the area.

The State-wide speed and distance rules applicable to these waters require a vessel not to be operated at a speed exceed 5 knots within 200 metres of the water’s edge or within 50 metres of a person in the water, another vessel, or a wharf, jetty, slipway, diving platform or boat ramp. Advice from Parks Victoria indicates these rules are not effectively addressing the risks in the area. A rule to exclude vessels from the entire area at Clifton Springs is another alternative, however not a viable option considering the high use of the area, the close vicinity of the boat ramp, and the principle of equity of use of Victorian waterways.

After considering the limited possible alternatives the introduction of the waterway rule restricting vessels from a section of the popular beach area is the most viable option in this instance, and is an appropriate response to the risks and safety issues identified.

8.1.3 Benefits and costsParks Victoria has identified that the proposed waterway rule is expected to benefit waterway users through increased safety, increased understanding and awareness due to a visually prominent vessel prohibited zone and therefore increased compliance. No costs were identified by Parks Victoria.

The new waterway rule for the Clifton Springs area is expected to benefit waterway users by separation of competing and conflicting uses of the area and reducing the risk of unsafe interaction. Boaters will benefit by creating a safe operating area without the risk of interaction with swimmers and the old jetty piles. Benefits to swimmers relate to the creation of a relatively safe operating environment for swimming without threat of interaction with vessels.

The identified costs associated with the new waterway rule relate to a section of the beach area not being accessible to boaters, however, this will in fact mitigate the navigational hazard to boaters using the beach area near the old jetty piles.

The introduction of waterway rules will also result in costs for Parks Victoria associated with the installation of navigational aids and signage marking the vessel prohibited zone boundary. This cost would be included as part of Parks Victoria’s ongoing program to upgrade boating zones throughout Port Phillip. There may also be costs associated with monitoring and enforcement despite the fact that Parks Victoria has not identified them.

After considering the benefits and costs I am of the view that the benefits of the new waterway rule outweighs any of the identified costs.

8.2 Summary of submissions or comments5

Parks Victoria received 9 formal submissions in response to the proposed waterway rule.

Parks Victoria in its Request provided a summary of the comments made in the submissions that related specifically to the proposed waterway rule.

In reviewing how Parks Victoria has taken into account the submissions received in relation to the proposed rule, I am of the view that the response to amend the originally proposed rule is adequate and addressed issues raised in the submissions.

9. Safety Director’s Decision

5 MSA s187 (1) (b)Waterway Rule Decision of 21Local Port of Port Phillip – Clifton SpringsApril 2016

I, Peter Corcoran, Director Maritime Safety, delegate of the Director, Transport Safety, hereby advise6 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 rule as requested by Parks Victoria for the Local Port of Port Phillip.

10. Reasons for Decision

Parks Victoria has identified the safety risks to vessel operators and swimmers at Clifton Springs 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 the new waterway rule. The proposed rule represents an appropriate response to address the safety issues on the waterway.

Parks Victoria 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, concerns raised by the public, reduces the potential for high risk interaction between swimmers and vessels, reduces the risk of vessels colliding with a navigational hazard 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 of navigational aids and signage by the waterway manager.

PETER CORCORANDirector, Maritime SafetyDelegate of the Director, Transport SafetyDated: 26/5/2016

6 MSA s188Waterway Rule Decision of 21Local Port of Port Phillip – Clifton SpringsApril 2016

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


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