Title of procedure - Transport Safety...

Waterway Rule Decision346-2015-WR

Decision relating to a request for the making of a

waterway rule – Gunbower Creek

Waterway: Gunbower Creek

Waterway manager: Gannawarra Shire Council

Waterway rule decision: 346-2015-WR

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

Date of decision: 02/08/2017

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 6 of the Marine Safety Act 2010, the Minister for Ports, by Order published in the Government Gazette, has declared the Gannawarra Shire Council to be the appointed waterway manager for the waters of Gunbower Creek.

1.2 The nature of the waterwayThe Gunbower Creek is located east of Cohuna, approximately 32km south east of Kerang, and branches off the Murray River. It breaks away from the Murray River near Torrumbarry and re-enters the Murray River near Koondrook. It forms the western boundary of Gunbower Island with the Murray River bordering the eastern boundary. The Gunbower Creek is an important natural carrier in the irrigation supply system. It holds water permanently and has very high environmental value, particularly for native fish and water birds. It is also classified as a Ramsar wetland.

Gunbower Creek’s high water levels and gentle banks make it very attractive for camping with great access to the water for fishing or canoeing. Water based activities include swimming, fishing, bird watching and canoeing along the creek. Water skiing and towed water sports are also very popular on the Gunbower Creek at the Cohuna Ski Run just upstream of the town. A concrete ramp is located just upstream of town on the Creek and also at the Cohuna Waterfront Holiday Park. Smaller fishing boats can be launched from the bank depending on the water level of the creek. The Cohuna Bridge to Bridge comprising of triathlon and canoeing/kayaking events is held along the creek in March each year.

1.3 History of the waterway rulesThe current waterway rules for Gunbower Creek are detailed in Schedule 73 of the Vessel Operating & Zoning Rules. Schedule 73 was created under section 184 of the Marine Safety Act 2010 (Vic) and published in the Victoria Government Gazette S279 on 23 September 2015.

Prior to that the waterway rules had been in place since 1993, however were changed in 2015 on the recommendation of Gannawarra Shire Council as a result of the findings in a waterway audit undertaken by Transport Safety Victoria in December 2011 and following temporary rules for a trial period from April 2012 to May 2013.

The current waterway rules in Schedule 73 for Gunbower Creek extend to all of the waters that are within the Shire of Gannawarra and include speed restrictions of 5 knots and 40 knots (in 2 areas), an area prohibited to vessels and an area prohibited to vessels with engines, to reflect a variety of boating activities that occur on the waterway.

Waterway Rule Decision of 27Schedule 73 Gunbower Creek

2. Application to make waterway rules

On 4 September 2015, Gannawarra Shire Council submitted a Notice of Intention to Request a Waterway Rule1 to the Director, Transport Safety (Safety Director).

The proposal submitted by Gannawarra Shire Council is to amend the waterway rules for Gunbower Creek as follows:

Redefine the waterway rule area (and the extent of the waterway managed) from Cohuna Weir to 700 metres upstream of Daltons Bridge;

Create a safety water level height that when triggered reduces the speed limit to 5 knots.

Create two exclusive use and special purpose areas (to be applied to the two existing 40 knot speed limit areas) for the exclusive use of vessels engaged in water skiing and vessels transiting the area.

Create operating rules to apply to the proposed exclusive use and special purpose areas that:

o restrict high speed boating to one direction only (i.e. downstream/port side)

o direct vessels when transitioning the areas are not permitted to drift, must keep close to the opposite upstream/starboard side and are restricted to a 5 knot speed limit;

o prohibit the use of wake enhancing vessels; and

o prohibit persons engaged in towed sports to use wake enhancing devices, prohibit loading vessels with passengers to cause exaggerated wake, limit the number of passengers on board whilst towing, prohibit vessels operating to cause excessive wake or bow wave, and direct fallen skiers to swim to the right.

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 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

1 MSA s193 (1) and (2)Waterway Rule Decision of 27Schedule 73 Gunbower Creek

(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 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 Gannawarra 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, Gannawarra 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

Gannawarra Shire Council undertook the required public consultation in relation to the new waterway rules from 5 February 2016 until 4 March 2016. Notices inviting submissions were published in the Herald Sun (state-wide newspaper) and Gannawarra Times, and on the Gannawarra Shire Council website. In addition a public session was held on 10 February 2016 in Cohuna.

The public consultation documentation included information about redefining the extent of the waterway managed by Gannawarra Shire Council, the 5 knot speed limit at low water levels, and prohibiting wake enhancing vessels and wake boarding. It briefly mentioned high speed boating in one direction only (downstream) and a 5 knot speed limit in the opposite direction (upstream) as an alternative option.

The public consultation did not include the two exclusive use and special purpose areas for the exclusive use of vessels engaged in water skiing and vessels transiting the area, nor did it include the additional operating rules in relation to vessels transitioning the high speed areas, directing fallen skiers to swim to the right and the additional rules surrounding wake 2 Required under s193 MSA3 MSA s196Waterway Rule Decision of 27Schedule 73 Gunbower Creek

enhancing devices, loading vessels to cause exaggerated wake, limiting the number of passengers, etc.

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 31 August 2016. A copy of the Request is provided in Appendix 1.

In making its request for waterway rules the Gannawarra 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.

Gannawarra Shire Council submitted the Request in writing, with the required information including a draft of the proposed waterway rule.

6.1 Description of the proposed waterway ruleGannawarra Shire Council submitted the following proposed waterway rules for Gunbower Creek:

Extend the boundary of the 5 knot speed restriction zone (thereby reducing the area prohibited to vessels with engines) downstream of the Cohuna Caravan Park boat ramp to allow access to the east bank.

Redefine the extent of the waterway managed by Gannawarra Shire Council from Cohuna Weir to 700 metres upstream of Daltons Bridge.

Create a 5 knot speed limit rule when the water level is below a specified level at the boat ramp on Gunbower Creek.

Re-introduce an exclusive use and special purpose zone for all classes of vessels which (Gannawarra Shire Council believed) was removed in error in 2015.

Create rules to prohibit the use of wake enhancing vessels including additional criteria regarding vessels designed to enhance wake, vessels with ballast tanks and loading adjustable CAV plates or wedges, and excessive loading of vessels.

The following initially proposed rules were omitted from the proposal:

Create two exclusive use and special purpose areas for the exclusive use of vessels engaged in water skiing and vessels transiting the area. (Not included in the public consultation.)

Create operating rules to apply to the proposed exclusive use and special purpose areas in relation to vessels transitioning the high speed areas and directing fallen skiers to swim to the right. (Not included in the public consultation.)

Create a new rule to restrict high speed boating in one direction only (i.e. downstream) and a 5 knot speed limit in the opposite direction (upstream). (Briefly mentioned in the public consultation as an alternative option.)


6.2 Mandatory considerations4

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

Define the waterway under its control to be from Cohuna Weir to 700 metres upstream of Daltons Road Bridge. Historically Council has managed this section due to this section being the higher risk area due to the 40 knot speed zone, the non-powered boating area and the non-boating area. The remainder of the waterway has a speed limit of 5 knots as per the State rule (5 knots within 50 meters of the waters’ edge) and is not patrolled by Council officers.

The proposed 5 knot speed limit when the water drops below a certain level will reduce the danger posed by snags and tree trunks from past fallen trees. A number of these fallen trees are partially exposed during winter months when the creek level drops due to irrigation off season. Also the creek even at high level is relatively narrow with trees either side and when the water level drops the creek narrows further. A reduced maximum speed limit when the creek is not flowing over the Cohuna Weir will create a safer waterway enabling vessels more reaction time on the narrow windy waterway. Also historical use indicates that use of the waterway reduces outside of summer and the irrigation season.

Wake creating vessels running in opposite directions to water-skiers or barefoot skiers has been deemed a safety risk and Council voted to remove the wake enhancing vessels. Historically Gunbower Creek is a barefoot-skiing area and enhanced wakes are dangerous for barefoot-skiing and beginning skiers/wakeboarders.

Gannawarra Shire Council did not identify any safety risks in relation to the proposed rules to extend the boundary of the 5 knot speed restriction zone (thereby reducing the area prohibited to vessels with engines) and re-introduce an exclusive use and special purpose zone for all classes of vessels, that these rules seek to address.

6.2.2 AlternativesGannawarra Shire Council considered four alternative options in relation to the current two 40 knot speed restriction zones in proposing the waterway rule changes.

Option 1 was high speed activity in one direction only (downstream) and 5 knot speed limit in the opposite direction (upstream). This option was not considered further as it did not gain support in the public consultation and some submissions were opposed to it.

Option 2 was to restrict wake enhancing vessels and wakeboarding to only one of the 40 knot speed restriction zones. Difficult considering the main section is 3.1km in length and the other section only 650m in length. Again this option was not considered as it did not gain any support in the public consultation.

Option 3 was to remove all high speed activity from the waterway. This had no support at all and 40% of the public consultation respondents preferred the rules remain as they are.

Option 4 was a timed arrangement, however Council did not consider this viable due to the amount of policing required to ensure compliance. Also Council believed the issue was around a particular vessel type (wake boats) rather than the activity (waking boarding).

4 MSA s187 (1) (a)Waterway Rule Decision of 27Schedule 73 Gunbower Creek

These were the only alternatives outlined by Gannawarra Shire Council and Gannawarra Shire Council did not explore alternatives for the other proposed rules.

6.2.3 Benefits and costsGannawarra Shire Council nominated the following benefits of introducing the proposed waterway rule changes:

Overall vessels will be able to navigate the waterway in a safer manner when the water level is low and the creek is narrow.

Prohibiting wake enhancing vessels will remove larger wake hazard for water-skiers or barefoot-skiers creating a safer and calmer environment in which to ski.

Redefining the waterway will allow Council to monitor and police the defined waterway far more effectively. This will improve users attitudes to other boaters, local laws officers, asset protection and enhancement and foreshore improvements.

The costs identified by Gannawarra Shire Council are:

Prohibiting wake enhancing vessels could lead to a reduction in the numbers of users on the waterway that could have flow on effects to local accommodation and tourist facilities. A number of respondents indicated removing wake boarders would drive them away from going to Cohuna as a holiday destination.

Gunbower Creek is over 50kms in length in the Gannawarra Shire and is a component of the Goulburn Murray Water irrigation system. Council has never managed the creek entirely, only the high speed areas. It has no intention of creating any new access points to the creek nor developing any more zones or high speed use areas. Council does not and will not take responsibility for any access point installed outside of their proposed defined area or be able to police these areas.

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

Gannawarra Shire Council received 35 submissions from the public consultation. Overall, 14 of the 35 submission indicated that the rules should stay the way they are.

In summarising the submissions in relation to the rules to prohibit wake enhancing/ wake creating boats or wake boarding activity:

33 of 35 were opposed to banning wake boarding activity (2 no comment)

16 of 35 were opposed to banning wake enhancing vessels

13 of 35 were in favour of banning wake enhancing vessels

In summarising the submissions in relation to the 5 knot speed limit rule when the water level is below a specified level:

4 were against

2 were in favour

29 made no comment

There were no objections to redefining the area of the waterway managed by Gannawarra Shire Council.

Other comments received in the submissions but outside of the scope of the proposed rules included:


3 of 35 commented that jet-skis should be banned.

1 comment proposed the nature cruise boat should be allowed to travel to the town bridge.

Gannawarra Shire Council had proposed an option for high speed boating in one direction only (downstream) and a 5 knot speed limit in the opposite direction (upstream), and an option to remove high speed activity, however there were general objections to this and these alternatives were not considered further.

A report was provided to Council taking into consideration the responses to the public consultation, and the Councillors voted a motion to:

“1. Proceed with the proposed waterway changes to:

a. Impose a 5 knot speed limit when a safety height is triggered

b. Redefine the managed waterway from Cohuna Weir to 700m upstream of Daltons Bridge

c. Ban wake enhancing vessels under the following criteriai. Vessels that are designed to enhance wakeii. Vessels that have ballast tanksiii. Vessels that have adjustable CAV plates or wedgesiv. Vessels that have excessive loading

2. Not proceed with the proposed waterway rule change to:

a. Prohibit wakeboarding.

3. Work with North Central Catchment Management Authority, Parks Victoria, Department Environment, Land, Water and Planning, Goulburn Murray Water and adjoining landowners to investigate an ongoing bank stabilisation program.”

Gannawarra Shire Council proposed the rule to extend the boundary of the 5 knot speed restriction zone (thereby reducing the area prohibited to vessels with engines) following the public consultation due to the Nature Cruises proposed mooring site on the east bank.

7. Compliance with Marine Safety Act waterway rule making process

Gannawarra 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.

Gannawarra Shire Council has complied with most of the requirements of the MSA, including public consultation, however not all of the rules proposed were included in the public consultation documentation nor addressed the mandatory considerations. The MSA is specific in it requirements for public consultation and addressing mandatory considerations, therefore the proposed rules that did not meet these requirements will be excluded from the decision to make or not make the proposed rules.

These proposed rules did not comply with the waterway rule making process of the MSA and will not be considered further in this proposal:

Extend the boundary of the 5 knot speed restriction zone (thereby reducing the area prohibited to vessels with engines) downstream of the Cohuna Caravan Park boat ramp to allow access to the east bank.


Re-introduce an exclusive use and special purpose zone for all classes of vessels which (Gannawarra Shire Council believed) was removed in error in 2015.

Create additional operating rules/criteria in relation to prohibiting wake enhancing vessels, regarding vessels designed to enhance wake, vessels with ballast tanks and loading adjustable cavitation (CAV) plates or wedges, and excessive loading of vessels.

Therefore in summary, the proposed rules that complied with the requirements of the MSA and will be considered by the Safety Director are as follows:

Redefine the extent of the waterway managed by Gannawarra Shire Council from Cohuna Weir to 700 metres upstream of Daltons Bridge.

Create a 5 knot speed limit rule when the water level is below a specified level at the boat ramp on Gunbower Creek.

Create rules to prohibit the use of wake enhancing vessels.

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 eliminateGannawarra Shire Council has identified some safety issues on Gunbower Creek associated with vessel activities on the waterway to warrant a change to the rules.

Historically Gannawarra Shire Council has been the waterway manager for a large section of Gunbower Creek extending beyond those waters where specific waterway rules are in place. The waterway rules cover the waters from Cohuna Weir to 700 metres upstream of Daltons Bridge. Given the extent of the rest of the waterway, limited accessibility and the fact that Goulburn Murray Water manages the waterway for irrigation purposes, it is difficult for Gannawarra Shire Council to effectively carry out its responsibilities as a waterway manager for the rest of the waterway. The State rule of 5 knots within 50 metres of the water’s edge is an adequate rule to mitigate safety risks on the rest of the waterway, due to the nature of the narrow creek.

For these reasons I support redefining the extent of the waterway managed by Gannawarra Shire Council from Cohuna Weir to 700 metres upstream of Daltons Bridge, however, it is not within my power to do this. Under Section 6 of the MSA, the Minister for Ports has the power to declare a waterway manager for a part of State waters that is specified by an order published in the Government Gazette. The Council will need to write to the Minister for Ports to request a change to their appointment as a waterway manager. MSV will support this action and assist Gannawarra Shire Council to achieve this.

As a consequence of redefining the extent of the waterway managed by Gannawarra Shire Council, waterway rule 73.7 in relation to the 5 knot speed restriction on all the waters of Gunbower Creek within the Shire of Gannawarra, will need to be re-written to capture the Waterway Rule Decision of 27Schedule 73 Gunbower Creek

two 5 knot speed restriction areas within the waters from Cohuna Weir to 700 metres upstream of Daltons Bridge.

Gannawarra Shire Council identified safety issues regarding submerged and semi-submerged hazards and the potential for vessels colliding with these hazards during low water levels. A rule that triggers a 5 knot speed limit when the water is below a specified level will reduce the consequences of vessels colliding with hazards exposed by low water levels by restricting high speeds. The proposed rule reflects an appropriate response to addressing the identified safety hazards at low water levels.

In 2015, following a trial, the 40 knot speed restriction zones were introduced in part to address the safety issues of excessive speed and wash from wake creating boats in the narrow creek. The State rule of not exceeding 5 knots with 50 metres of another vessel or a person in the water should reduce the risk of wake to water-skiers, barefoot skiers or wakeboarders. The mandatory considerations outlined by Gannawarra Shire Council do not present a strong safety case to support a rule that prohibits the use of wake enhancing vessels. In addition, the results of the public consultation do not support banning wake enhancing vessels (46% opposed the ban, 37% in favour of the ban, 17% no preference).

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 rule to prohibit the use of wake enhancing vessels.

After considering the safety issues I am of the view that the waterway rule proposed by Gannawarra Shire Council for low water levels, reinforced by appropriate signage and education, will reduce safety issues associated with submerged hazards at low water level on the narrow waterway.

8.1.2 Alternative ways to address risks and safety issuesGannawarra Shire Council believes that there are no alternative measures other than changing the waterway rules with the proposed rules.

It considered four alternative options to change the waterway rules in relation to the current two 40 knot speed restriction zones to avoid proposing the rule prohibiting wake vessels. These options related to high speed activity in one direction only, restricting wake enhancing vessels and wakeboarding to only one of the zones, removing all high speed activity or a timed arrangement. However, none of these options were supported. Some other rule options that could be explored for the high speed zones include defining an area for wakeboarding for specific days/times, or limiting the number of vessels using the zone and the number of runs per vessel if there are others waiting.

In relation to the 5 knot speed restriction for low water levels, it is my belief that there are no alternative ways to address the risk, other than marking all of the hazards which is both impractical and costly. The proposed rule will create a safer operating environment during low water levels and provide for all users of the waterway to have a degree of both access to the waterway and equity of use in a safer environment.

In relation to redefining the extent of the waterway managed by Gannawarra Shire Council, there appears to be no alternative for the Council who historically have not carried out the functions of waterway manager on the creek beyond the zoned areas near Cohuna. The alternatives are to find another waterway manager, which is highly unlikely given the reasons already outlined, or for it to become unmanaged which essentially is what it already is. I


believe the State rule of 5 knots within 50 metres of the water’s edge that will apply is a good outcome.

After considering the limited alternatives to revised waterway rules the introduction of the proposed waterway rule for low water levels, in this instance, is the most appropriate response to the risks and safety issues identified.

8.1.3 Benefits and costsGannawarra Shire Council identified some benefits and costs associated with the proposed waterway rules for redefining the extent of the waterway managed, the 5 knot speed restriction for low water levels and the prohibition of wake boats.

The introduction of the 5 knot speed restriction rule for low water levels is expected to benefit all waterway users by ensuring a safer operating environment during periods of low water levels which present additional hazards to waterway users. Expected costs relate to the initial purchase and installation of new signage to reflect the rules, and ongoing costs of staff to monitor the water levels and adjust signs to reflect the operating rules dependant on the prevailing water levels. As the water level is controlled by Goulburn Murray Water monitoring costs would be minimal for Gannawarra Shire Council.

Redefining the waterway area managed by Gannawarra Shire Council to exclude the areas outside of the current zoned areas will result in no specific changes to the status quo. There will be no benefit or cost to waterway users and it removes the burden from Gannawarra Shire Council in relation to managing a large area of the creek that does not necessarily need to be managed.

A rule to prohibit the use of wake enhancing vessels has a perceived benefit to other users of the waterway by removing larger wake. However, there is still the issue of wake created by other high speed vessels on the narrow creek. The costs are a lack of equity for wake vessels/wakeboarders and the potential follow on effects to the town losing some visitors.

It is my belief that the benefits of the proposed low water level rule and redefining the waterway substantially outweigh any of the identified costs. However the proposed prohibition of wake enhancing vessels has marginal benefit and does not outweigh the cost of equity.

8.2 Summary of submissions or comments5

Gannawarra Shire Council received 35 submissions from the public consultation. In its Request, Gannawarra Shire Council provided a summary of comments made in the submissions.

In reviewing how the Gannawarra Shire Council has taken into account the submissions received I am of the view that the council response is mostly adequate, but inadequate in respect of the proposal to ban wake enhancing vessels. Given the response to submissions received and the report forwarded to the council by council officers, Gannawarra Shire Council has taken into account the submissions by removing the proposed rule to ban wakeboarding, however has not taken into account the submissions when proposing the rule to prohibit wake enhancing vessels (only 37% of submissions supported the banning of wake enhanced vessels). It has provided no supporting documentation for the criteria it proposes to define a wake enhancing vessel and provided no supporting documentation as to why the report from council officers was rejected in respect of the rule to prohibit wake enhancing vessels.

5 MSA s187 (1) (b)Waterway Rule Decision of 27Schedule 73 Gunbower Creek

In relation to the proposed 5 knot speed limit rule when the water level is below a specified level, there was minimal response. Despite 4 being against the rule and 2 in favour of the rule, I support the Councils decisions to propose this rule due to the improved safety outcomes for vessel operation during low water levels.

Following the public consultation, Gannawarra Shire Council proposed a rule to extend the boundary of the 5 knot speed restriction zone (thereby reducing the size of the area prohibited to vessels with engines) due to the Nature Cruises proposed mooring site on the east bank. This rule change appears to be proposed following one submission that was outside of the scope of the public consultation and appears to be for one vessel only. As previously stated this rule is not being considered as the mandatory considerations have not been addressed and, especially as this change impacts on the area set aside for non-powered vessels, the safety issues of allowing all powered vessels into an area that is currently prohibited to vessels with engines have not been addressed.

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 following waterway rule as requested by Gannawarra Shire Council for Gunbower Creek, for the reasons outlined previously in this document:

Create a 5 knot speed limit rule when the water level is below a specified level (to be advised by Gannawarra Shire Council) at the boat ramp on Gunbower Creek.

10. Reasons for Decision

Gannawarra Shire Council has identified the safety risks to vessel operators when operating a low water level and proposed a balanced approach to addressing these risks with the introduction of the new waterway rule restricting speed to 5 knots. Given the current waterway use and the nature of Gunbower Creek, this proposed rule represents an appropriate response to address the safety issues associated with low water levels.

The rule will be published in the Government Gazette and on the Safety Director’s internet site, following advice from the waterway manager as to the appropriate water level to trigger the speed restriction.

As mentioned previously, the proposal to redefine the extent of the waterway managed by Gannawarra Shire Council, is supported but is not within my power and the Council will need to write to the Minister for Ports to request a change to their appointment as a waterway manager. MSV will support and assist Gannawarra Shire Council to achieve this.


The proposed rule to prohibit the use of wake enhancing vessels is not supported as outlined previously, due to the principle of equity of use, an inadequate safety case with marginal benefit to support the rule and the results of the public consultation that does not support banning wake enhancing vessels, and which was not taken into consideration by council.

The other proposed waterway rules to extend the boundary of the 5 knot speed restriction zone downstream (thereby impacting the area prohibited to vessels with engines) and to re-introduce an exclusive use and special purpose zone for all classes of vessels, as outlined previously do not meet the criteria required by the MSA for me to consider them further in this application. Gannawarra Shire Council may seek to propose these rules again should they present a safety case, address the mandatory considerations and following public consultation.

As an alternative to extending the boundary of the 5 knot speed restriction zone, thereby reducing the size of the area prohibited to vessels with engines, Gannawarra Shire Council could consider negotiating an exemption for the specific ‘Nature Cruises’ vessel, based on a safety management plan for the vessel, where safety issues associated with operating in the non-powered vessel zone are addressed. This exemption can be made under section 260 of the MSA.

RACHEL GUALANODeputy Director OperationsDelegate of the Director, Transport SafetyDated: 02/08/2017


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


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