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Decision relating to a request for the making of a

waterway rule – Local Port of Port Phillip &

Western Port Bay (2016 Boating Zone

Improvements)

Waterway: Local Port of Port PhillipWestern Port Bay

Waterway manager: Parks Victoria

Waterway rule decision: 490-2016-WR

Decision made by: Cameron Toy Acting Director Maritime SafetyDelegate of the Director, Transport Safety

Date of decision: 11/01/2019

1. The Waterway Manager and the Waterway

1.1 The appointed waterway manager

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

The waters of Western Port Bay are managed by two authorities. The Victorian Regional Channels Authority manages the port waters of the Port of Hastings and Parks Victoria manages the waters of the Local Port of Western Port.

In accordance with section 6 of the Marine Safety Act 2010 (Vic) (Marine Safety Act), 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 and Western Port Bay.

1.2 The nature of the waterways

Port Phillip

Port 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, to Frankston and down the Mornington Peninsula from Mornington/ Mt Martha, 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 several marinas, including large marinas at St Kilda, Geelong and Brighton, and dozens of lifesaving clubs.

Port Phillip Bay has four Marine Protected Areas – Jawbone, Point Cooke, Ricketts Point and Port Phillip Heads.

Western Port

Waterway Rule Decision Page 2 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

Western Port (commonly known as Western Port Bay), is a large tidal bay in southern Victoria, opening into Bass Strait. It is the second largest bay in the state and contrary to its name, it lies in the eastern half of Victoria and to the east of the larger Port Phillip and Greater Melbourne. It is separated from Port Phillip Bay by the Mornington Peninsula.

The waters of Western Port cover an area of 680 square kilometres of which 270 km² are exposed as mud flats at low tide. The topography of Western Port is dominated by two large islands: French Island and Phillip Island. The coastline, including that of the islands, is some 263 km.

In the northern reaches, several rivers and creeks drain into the bay and flow through extensive mangroves, mudflats and sand banks before being channelled either side of French Island and into the open water in the southern reaches around Phillip Island.

Deep channels lead from Bass Strait into the western section of the bay, giving access to the region's port facilities.

Western Port is home to the three Marine Protected Areas—French Island, Churchill Island and Yaringa, and is mostly used for recreation; however, there is also a military base (HMAS Cerberus) and shipping and oil production facilities adjoining the bay. Fishing, pleasure boating and yachting are some of the popular pastimes on the bay.

1.3 History of the waterway rules

The 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 and published in the Victoria Government Gazette S142 on 5 June 2015.

The current waterway rules for Western Port Bay are detailed in Schedule 5 of the Notice under section 15(2) of the former Marine Act 1988 (Vic) published in the Victoria Government Gazette S221 on 28 June 2012, with amendments published in S334 on 24 September 2014 and S158 on 18 June 2015 under the Marine Safety Act.

Many of the waterway rules in Schedule 1 and Schedule 5 were created prior to 1988. The waterway rules and associated zones were established over a number of years, many of which date back to before the Marine Act 1988 (Vic) when zones were created by the Port of Melbourne Authority and other agencies under various port-related acts including the now-repealed Motor Boating Act 1961 (Vic).

In 2005, Parks Victoria in collaboration with Marine Safety Victoria, now Maritime Safety Victoria, (MSV) undertook a review of boating zones across Port Phillip and Western Port. (2009 BECA Review)

To assist in the review of the waterway rules and in the development of revised or amended waterway rules Parks Victoria and Marine Safety Victoria developed a Boating Zones Framework. This framework outlined the principles to be applied in the review of waterway rules: The principles recognised that:

Boating only zones were to provide priority for boats by excluding all other users.

No boating zones were to provide bather safety by excluding all vessels.


5 knot zones were to control speed, reduce conflict between various waterway users, and minimise risk in shallow water.

The review included an assessment of existing boating zones and an extensive public consultation process that resulted in a number of recommended changes to boating zones across both Port Philip Bay and Western Port Bay.

These recommendations were published in 2009 in the 'Port Phillip and Western Port Boating Zone Review- Recommendations Report', also referred to as the BECA1 Boating Zones Report (2009 Recommendations Report) and submitted to MSV. All recommendations in the Report were given ‘in principle approval’ by MSV under the Marine Act 1988 (Vic).

Parks Victoria has worked to implement these boating zones outlined in the 2009 Recommendations Report in five stages across Port Phillip and Western Port. Four of the five stages have now been implemented. Due to ongoing issues, and feedback suggesting improvements, some of the boating zones proposed in the 2009 Recommendations Report have not been implemented and have been under review by Parks Victoria.

2. Application to make waterway rules

On 25 October 2016, Parks Victoria submitted a Notice of Intention to Request a Waterway Rule2 to the Director, Transport Safety (Safety Director).

The proposal submitted by Parks Victoria is to amend the waterway rules for Port Phillip and Western Port, with a series of changes to boating zones as follows:

Minor realignments to the borders of existing Kiteboarding, 5 Knot and Swimming Only (vessel prohibited) zones at Elwood and Brighton.

Rationalisation of adjacent Kiteboarding, 5 knot and Swimming Only (vessel prohibited) Zones at Hampton to extend the area available to kiteboarders and windsurfers and reduce the Swimming Only (vessel prohibited) Zone.

Minor expansion of Swimming Only (vessel prohibited) Zones at Chelsea, Bonbeach and Aspendale.

New Swimming Only (vessel prohibited) Zone at Coleman Road Aspendale.

Expansion of the Swimming Only Zone (vessel prohibited) south of the Patterson River at Carrum.

Retain the No Personal Water Craft Zones immediately north and south of Patterson River contrary to the 2009 Recommendations Report. The 2009 Recommendations Report proposed the creation of an area prohibited to vessels north and south of Patterson River with a trial non-powered vessel zone in the northern section. This zone has not been implemented.

Retain the No Personal Water Craft Zones at Shoreham in Western Port contrary to the 2009 Recommendations Report. The 2009 Recommendations Report proposed the creation of an area prohibited to vessels on either side of the boat ramp at Shoreham. This zone has not been implemented.

1 Beca Pty Ltd, the consultancy firm engaged to deliver the report.2 Marine Safety Act, s193 (1) and (2)Waterway Rule Decision Page 4 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

Alter the proposed permanent Swimming Only (vessel prohibited) Zone near the Point Leo Lifesaving Club to a new Swimming Only (vessel prohibited) Zone activated by the use of Lifesaving Club beach flags. The 2009 Recommendations Report proposed the creation of an area prohibited to vessels near the Point Leo Lifesaving Club). This zone has not been implemented.

Removal of the existing No Personal Water Craft Zone, and replacement with a new Swimming Only (vessel prohibited) Zone and Vessels Only Zone within the newly developed and expanded Portarlington Harbour.

Renaming of all Port Phillip and Western Port ‘Kiteboarding Zones’ as described in Schedules 1 and 5 of the Vessel Operating and Zoning Rules (VOZR) to ‘Shared Windsports Zones’ to describe and allow the use of the zones by kiteboards and windsurfers.

Apply an exemption to all human powered paddle craft that allows these vessels to use the Swimming Only (vessel prohibited) Zones of Port Phillip and Western Port.

3. Marine Safety Act requirements for waterway rule making

The Marine Safety Act, details the process that must be followed when a port management body, local port manager or waterway manager proposes that the Safety Director introduces or amends waterway rules.

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

3.1 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.Waterway Rule Decision Page 5 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

(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 194.(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 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 relevantly 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;

‘Mandatory considerations’ are defined in section 183 of the Marine Safety Act. In relation to a proposed waterway rule, mandatory considerations mean:

(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 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 sets out the process by which requests for waterway rules can be made. Sub-section (3) provides:

(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 assessment of the Intention to Request a Waterway Rule

After assessing 3 the Notice of Intention to Request a Waterway Rule received from Parks Victoria, Peter Corcoran, former Director Maritime Safety, as a delegate of the Safety Director, determined that the proposed rules were:3 Required under s193, Marine Safety Act. Waterway Rule Decision Page 7 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

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).

Notice of this determination was provided in writing to Parks Victoria and published in the Government Gazette, S335 on Friday 4 November 2016.4

Given the determination that the request was assessed to be within the powers of the Safety Director and material in nature, Parks Victoria was required to undertake the following public consultation5:

publishing notice of the proposal to request the rules in a newspaper circulating generally throughout the state

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

making copies available to the public free of charge

inviting comments

allowing at least four weeks for submissions.

5. Waterway manager’s public consultation

Parks Victoria undertook the required public consultation in relation to the proposed waterway rules from 16 November 2016 until 16 December 2016. A notice inviting submissions was published in the Herald Sun (state-wide newspaper) and on the Parks Victoria website.

The public consultation was also promoted through public notices, the Local Ports eNewsletter, social media, and stories in three newspapers (The Age, Chelsea-Mordialloc News and the Bellarine Times). In addition, three community drop-in days (at Carrum LSC, Brighton LSC and the Portarlington Pier development site) were held and an on-line survey conducted.

Parks Victoria also engaged and consulted with key stakeholders such as relevant local councils, foreshore committees of management, industry groups, tour operators, peak bodies and special interest groups.

6. Request to make waterway rules from the waterway manager

The Request for Making a Waterway Rule (Request) was submitted in the form of a document titled ‘Boating Zones Review Report’ received by Maritime Safety Victoria on 4 July 2017, and a subsequent submission of the draft proposed rules, received on 14 June 2018. A link to the Boating Zones Review Report is provided in Appendix 1.

In making the Request, Parks Victoria was required to:

4 In accordance with s 193(3)(b).5 This was in accordance with s 196, Marine Safety Act, as it was then drafted. The section has since been amended to provide publication options beyond newspapers. Waterway Rule Decision Page 8 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

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

address the mandatory considerations

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

explain how it, as the waterway manager, had taken into account the submissions and comments in addressing the mandatory considerations.

Parks Victoria submitted the Request in writing, with the required information.

6.1 Description of the proposed waterway rules

Parks Victoria submitted the following proposed waterway rules for Port Phillip and Western Port:

1. Minor realignments to the borders of existing Kiteboarding, 5 Knot and Vessels Prohibited Zones at Elwood.

2. Rationalisation of adjacent Kiteboarding, shared 5 Knot and Vessel Prohibited Zones at Hampton to extend the area available to shared windsports and reduce the Vessels Prohibited Zone.

3. Minor expansion of Vessels Prohibited Zone at Showers Avenue, Chelsea.

4. New Vessels Prohibited Zone near Coleman Road, Aspendale.

5. Expansion of the Vessels Prohibited Zone south of the Patterson River at Carrum.

6. Contrary to the 2009 Recommendations Report, retain the No Personal Water Craft Zones immediately north and south of the Patterson River, Port Phillip.

7. Contrary to the 2009 Recommendations Report retain the No Personal Water Craft Zone at Shoreham in Western Port.

8. Amendment to the 2009 Recommendations Report, to alter the proposed permanent Vessels Prohibited Zone near the Point Leo Lifesaving Club to a new Vessels Prohibited Zone activated by the use of Lifesaving Club beach flags.

9. Removal of the existing No Personal Water Craft Zone at Portarlington Harbour and replacement with a new Vessels Prohibited Zone and Boating Only Zone within the newly developed and expanded Portarlington Harbour.

10. Renaming of all Port Phillip and Western Port ‘Kite Boarding Zones’ to ‘Shared Windsports Zones’ to describe and allow the use of kiteboards and windsurfers in these zones.

11. Apply an exemption to all human powered paddle craft that allows these vessels to use the Vessels Prohibited Zones (swimming) of Port Phillip and Western Port.

Parks Victoria advised it was not proceeding with proposals for:

boundary adjustments of the existing Kiteboarding, 5 Knot and Swimming Only (vessels prohibited) zones at Brighton.

expansions of Vessels Prohibited Zones (swimming) at Williams Grove, Bonbeach and Gnotuk Avenue, Aspendale.


6.2 Mandatory considerations6

6.2.1 Safety risk the proposed rule is intended to minimise or eliminate

Parks Victoria has identified the following safety risks and issues that the proposed waterway rules seek to address:


On windier days kiteboarders and windsurfers share the 5 Knot Zone south of the Vessels Prohibited-Swimming Only Zone and utilise slightly different sailing angles and differing approaches to launching/getting underway.

The zone is difficult to tack (sail) out of, particularly for beginner windsurfers in S to SW breezes; there is a tendency to drift into Vessels Prohibited-Swimming Only Zone.

Current approach may encourage ongoing non-compliance by windsurfers and kiteboarders and use of Vessels Prohibited-Swimming Only Zones, creating conflict between users.

Increased chance of windsurfers and kiteboarders making poor decisions and using Vessels Prohibited-Swimming Only Zone at higher speeds resulting in a collision with a swimmer.

Windsurfers and kiteboarders making poor decisions and using the southern Shared 5 Knot Zone at higher speeds resulting in a collision with a swimmer.

2. Rationalisation of adjacent Kiteboarding, shared 5 Knot and Vessels Prohibited Zones at Hampton to extend the area available to shared windsports and reduce the Vessels Prohibited Zone.

Windsurfing and kiteboarding are very popular at Hampton when winds are stronger and blow cross shore or onshore. The existing Kiteboarding Zone north of Orlando St can become crowded.

The existing Kiteboarding Zone can be difficult to tack out of as there is a groyne running southwest from the beach at Orlando St.

Current approach may encourage ongoing non-compliance by windsurfers and kiteboarders and use of Vessels Prohibited-Swimming Only Zone as well of use the shared 5 Knot Zone at high speeds.

Increased chance of windsurfers and kiteboarders making poor decisions and using Vessels Prohibited-Swimming Only Zone or Shared Windsports Zone and 5 Knot Zone at higher speeds resulting in a collision with a swimmer.

Windsurfers and kiteboarders operating in increasingly crowded conditions resulting in a collision with other participants or rock groynes.

3. Minor expansion of Vessels Prohibited Zones at Showers Avenue, Chelsea.

The existing approach provides car parking for swimmers wanting to access the Vessels Prohibited-Swimming Only Zone, which only extends to the end of Avondale Ave.

6 MSA s187 (1) (a)Waterway Rule Decision Page 10 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

Chelsea Lifesaving Club is to the immediate north of the carpark, so the site meets the Boating Zones Framework criteria for a Vessels Prohibited-Swimming Only Zone.

Currently there is ongoing non-compliance by personal watercraft (PWCs), windsurfers and kiteboarders exceeding 5 knots in the Shared 5 Knot Zone. This happens with and without the presence of swimmers.

Increased chance of other vessels, windsurfers and kiteboarders making poor decisions and exceeding 5 knots in the Shared 5 Knot Zone resulting in a collision with a swimmer.

Community concern regarding vessel operators making poor decisions and using the Vessels Prohibited-Swimming Only Zone resulting in a collision with a swimmer. (Community may prefer a larger vessel-free area.)

Swimmers feel more separated from PWC operators in a Vessels Prohibited-Swimming Only Zone.


Additions to the Vessels Prohibited-Swimming Only Zones are suggested to better align them with beach access, local parking and nearby parks.

There is no Lifesaving Club adjacent to Coleman Road or Watkins Street. The site can be considered as meeting meet the Boating Zones Framework criteria, (See Section 1.3 History of waterway rules) as there is reasonable or well-engineered beach access at Coleman Road and some additional parking in Coleman Road across the Nepean Hwy off Station St.

Currently there is ongoing non-compliance by PWCs, windsurfers and kiteboarders exceeding 5 knots in the Shared 5 Knot Zone. This happens with and without the presence of swimmers.

Increased chance of vessels including PWCs, windsurfers and kiteboarders making poor decisions and exceeding 5 knots in the Shared 5 Knot Zone resulting in a collision with a swimmer.

The proposed zone between Watkins Street and Hearle Avenue provides for an area for bathers while at the same time recognising that the areas north and south of the zone are used by kite surfers who access the beach via Coleman Street and Hearle Avenue.


Intensively used beach during summer period. There is good train and bus access and car parking for swimmers wanting to access the Vessels Prohibited-Swimming Only Zone, which extends south from the Carrum Lifesaving Club.

Swimming north of the Carrum Lifesaving Club can be dangerous as there is a constant outgoing current from water pumped into Patterson Lakes. Training walls and maintenance dredging create steep drop-offs closer to shore.

The Patterson River Motor Boat Club has co-located to the Carrum Sailing Club and is now the Carrum Sailing and Motor Boat Club. The club will still require off


the beach vessel access for member’s vessels in the current shared 5 Knot Zone north of Carrum LSC.

Ongoing non-compliance by motorised vessels, PWCs and occasionally windsurfers and kiteboarders exceeding 5 knots in the Shared 5 Knot Zone.

A significant portion of the local and visiting users will be disappointed if additional controls are not put in place to better separate swimmers and motorised vessels including PWCs. This disappointment is likely to be expressed through ongoing lobbying of the port manager, local politicians and media attention.

Continuing high number of users. Ongoing chance of PWC operators and motor vessel operators making poor decisions and exceeding 5 knots in the Shared 5 Knot Zone resulting in a collision with a swimmer.

Community concern regarding vessel operators making poor decisions and using the Vessels Prohibited-Swimming Only Zone resulting in a collision with a swimmer. (Community may prefer a larger vessel free area near the busy car park and lifesaving club).

6. Retain the No Personal Water Craft Zones immediately north and south of Patterson River, Port Phillip (contrary to the 2009 Recommendations Report which recommended a Vessels Prohibited Zone with a trial non-powered vessel area to the north of Patterson River).

There is ongoing community concern regarding powered vessels accessing the beach. The Patterson River boat ramp complex has the highest launching and parking capacity in Victoria and many vessels utilise beaches nearer to the Patterson River on good beach days. Much of community concern focuses on PWCs as they approach and leave the shore more regularly. PWCs are perceived by sectors of the community to be less compliant and more likely to break the 5 knot 200m rule when approaching the shore.

Continuing high number of users. Ongoing chance of PWC operators and motor vessel operators making poor decisions and exceeding 5 knots in the Shared 5 Knot Zone, using the No Personal Water Craft Zone and Vessels Prohibited-Swimming Only Zone resulting in a collision with a swimmer.

Currently there is ongoing non-compliance by motor vessels and PWCs exceeding 5 knots in the Shared 5 Knot Zone. This happens with and without the presence of swimmers.

A significant portion of the local and visiting users will be disappointed if additional controls are not put in place to better separate swimmers and motorised vessels including PWCs. This disappointment is likely to be expressed through ongoing lobbying of the port manager, local politicians and media attention.

7. Retain the No Personal Water Craft Zone at Shoreham in Western Port (contrary to the 2009 Recommendations Report which recommended a vessel prohibited area).

Launching of small fishing boats and sailboats occurs occasionally at Shoreham when tide and swell allow. Generally, these vessels clear the No Personal Watercraft Zone area and only return to retrieve the vessel. Currently, vessels pass close to surfers to access open water for fishing or sailing but avoid the


shallower reef, breaking waves and surfers. Boat launching is much less likely to occur as the swell increases and more surfers are attracted to the area.

The recommendations contained in the 2009 Recommendations Report are not practicable to implement due to the difficulty marking a transit lane for vessels amongst the reefs and the surf zone.

The coastline is very tidal, subject to large swells and there are multiple unmarked reefs that make good navigation critical. Carrying charts or plotters on a PWC is impractical. Use of phone navigations apps is possible but phones are prone to impact and water damage.

Prior to the No Personal Water Craft Zone, PWCs were attracted to the area to launch and to jump the same waves utilised by surfers. This was considered to be a dangerous situation. Shoreham can experience large swells and surfers can be hidden from view behind approaching waves.

The local Shoreham Foreshore Committee has a rule in place that prohibits the launching of PWCs – this supports the No Personal Watercraft Zone.

A significant portion of the local and visiting users will be disappointed if specific controls are not maintained to separate swimmers and PWCs. This disappointment is likely to be expressed as ongoing lobbying of the port manager, local politicians and via media attention. Ultimately this may impact on the Parks Victoria and Maritime Safety Victoria reputation.

Continuing moderate to high number of users. Chance of PWC operators making poor decisions and, using the No Personal Watercraft Zone resulting in a collision with a swimmer or surfer.

8. Alter the proposed permanent Vessels Prohibited Zone near the Point Leo Lifesaving Club to a be activated by the use of Lifesaving Club beach flags (amending the recommendations of the 2009 Recommendations Report).

The area is exposed to large swells and can have a severe shore-break and stronger currents driven by onshore winds and tides. The site is adjacent to intertidal reefs and occasionally rock reefs below the normal sand beach are exposed by coastal processes. LSV and the local Point Leo Lifesaving Club raised concerns with installing permanent Vessel Prohibit Swimming Zone.

Generally, over the summer months Life Saving Club volunteers use an in-depth technical knowledge of the area to place beach flags at the safest swimming location according to swell, tide, sand movement, reefs and currents. The beach is patrolled over summer and flags are placed in the safest swimming location swimming safety is then monitored by experienced lifesavers.

PWCs are occasionally attracted to the area to launch and to jump the same waves utilised by swimmers and surfers. This is considered to be a dangerous situation. The offshore reefs, launching difficulties and larger tide differences make Western Port less attractive to PWC owners.

A significant portion of the local and visiting users will be disappointed if controls are not provided to better separate swimmers and vessels. This disappointment is likely to be expressed as ongoing lobbying of the port manager, local politicians and media attention.


Continuing moderate to high number of users. Chance of vessel operators using the Shared 5 Knot, within 200m of the Shore Zones inappropriately and making poor decisions, resulting in a collision with a swimmer or surfer.

Safe vessel operations closer to the Point Leo shore amongst reefs, sand bars, large tide and occasional large swells requires reasonably high skill levels, so few vessels visit the shoreline near the Lifesaving Club.

9. Removal of the existing No Personal Water Craft Zone at Portarlington Harbour and replacement with a new Vessels Prohibited Zone and Boating Only Zone within the harbour.

Swimming is very popular at this holiday location and many residents and visitors will find protected shallows formed by the harbour attractive for swimming and paddling with small children. There is ongoing community concern regarding powered vessels accessing the beach. Local community expectations are that the inshore area is primarily for sheltered swimming and paddling for small children.

There will need to be a clear separation between swimming and vessels working in the harbour. The inshore area will remain shallow and therefore will often be inaccessible to powered vessels that draw more than .3 of a metre, closer to the vessel infrastructure the bottom will drop away sharply (approx. 2.5 m) to the deeper dredged harbour floor.

A new control needs to be put in place to reflect the reconfigured harbour footprint. Applying the existing rule will make education and compliance work complex and hard to interpret correctly. Generally high numbers of users over summer. Vessel operators using the harbour could make poor decisions, resulting in a collision with a swimmer using the beach area within the harbour.

A significant portion of the local and visiting users will be disappointed if controls are not provided to separate swimmers and vessels using the harbour. This disappointment is likely to be expressed through ongoing lobbying of the port manager, local politicians and media attention.

10. Renaming of all Port Phillip and Western Port ‘Kite Boarding Zones’ to ‘Shared Windsports Zones’

Kiteboarders and windsurfers currently share the zones provided and different sailing angles enable both groups to use the zone safely and simultaneously.

During the 2009 BECA Review (which led to the 2009 Recommendations Report) kiteboarding was gaining popularity rapidly and zones were provided to allow kiteboarders to travel at more than 5 knots close to shore provided they were more than 50m from a swimmer. Windsurfing was less popular and expected to decline. In fact, both sports, supported by big advances in technology, are continually gaining popularity.

The current named Kiteboarding Zone may be interpreted by some windsurfers as excluding windsurfers. This could encourage non-compliance by windsurfers who appear to be excluded/not incorporated into the current boating zones framework. In turn, this may result in use of less appropriate zones such as the Shared 5 Knot Zones, Vessels Prohibited-Swimming Only Zone or zones dedicated to vessels and towed water skiing.


Increased chance of windsurfers making poor decisions and using the Vessels Prohibited-Swimming Only Zone or Shared 5 Knot Zone 200 or 500 m from shore at higher speeds resulting in a collision with a swimmer.

11. An exemption to allow all human powered paddle craft to use the Vessels Prohibited Zones of Port Phillip and Western Port.

Regular non-compliance with this rule in Vessels Prohibited-Swimming Only Zones by paddle craft users. Users seek the safety of using/learning how to use these paddle craft close to shore and away from powered vessels and sailing vessels.

While paddle craft must not exceed 5 Knots within 50m of swimmers and obey 5 knot rules where they apply as some pedal powered paddle craft, some surf skis and kayaks can maintain speeds well over 5 knots. Users do not require a license and vessels do not require registration and therefore, Vessel Operating Zone Rules are not well understood.

Allowing paddle craft in Vessels Prohibited-Swimming Only Zones complicates a simple message of ‘no vessels in these zones provided for swimming’.

Regular non-compliance in Vessels Prohibited-Swimming Only Zones results in confusion and conflict between users.

Paddle craft users make poor decisions and go 200 or 500 m from shore to avoid Vessels Prohibited-Swimming Only Zone and encounter high speed vessels or difficult sea conditions which results in injury.

6.2.2 Alternatives

Parks Victoria considered the following alternative options in relation to the proposed waterway rules:


Currently windsurfers and kiteboarders (being unlicensed and unregistered) receive little or incidental information about their responsibilities as vessel operators and waterway users. An extension program focused on stakeholder representative groups meetings, providing appropriate ‘pre-packaged’ web material and possibly visits to busy beaches during good conditions could improve this situation.

If resources were available there is the potential to increase compliance patrols when conditions suit windsports and swimming. Potential to partner with other maritime education and compliance agencies. Potential to further partner with local government to provide education and compliance messages.

Ongoing liaison with stakeholder representative groups Windsurfing Victoria (WV)/Kiteboarding Victoria (KBV) providing accurate feedback in regard to non-compliance (trends rather than examples).

Additional rule for future consideration. Community consultation has confirmed year-round use of this area by the kiteboarding and windsurfing communities. This site should be included in a future local port wide response to consider additional Shared Windsports Zones.


Improvements may include ongoing peer management to maintain appropriate on water behaviours and improved safety and self-rescue capacity. Sites north and south of the existing Vessel Prohibited-Swimming Only Zone should be considered.

2. Rationalisation of adjacent Kiteboarding, shared 5 Knot and Vessel Prohibited Zones at Hampton.

Currently windsurfers and kiteboarders (being unlicensed and unregistered) receive little or incidental information about their responsibilities as vessel operators and waterway users. An extension program focused on stakeholder representative groups meetings, providing appropriate ‘pre-packaged’ web material and possibly visits to busy beaches during good conditions could improve this situation.

If resources were available there is the potential to increase compliance patrols when conditions suit windsports and swimming. Potential to partner with other maritime education and compliance agencies. Potential to further partner with local government to provide education and compliance messages.

Ongoing liaison with stakeholder representative groups WV/KBV providing accurate feedback in regard to non-compliance (trends rather than examples).

3. Minor expansion of Vessels Prohibited Zones at Showers Avenue, Chelsea.

Further partner with KBV, WV and Life Saving Victoria, other maritime education and compliance agencies and retailers, to communicate windsports responsibilities around swimmers and reinforce the maximum of 5 knot within 50m of a swimmer rule.

Monitor behaviours and record incidents in Vessels Prohibited-Swimming Only Zones, and 5 Knot Shared Zone in partnership with City of Kingston.

Parks Victoria rangers will continue noting potential dangerous interactions between vessels and swimmers.

If resourcing permits, consider out of hours patrols when boating and swimming conditions are conducive to higher participant numbers.

If resourcing permits, consider out of hours patrols when stronger sea breezes are more common and windsports enthusiasts are more likely to be present.

A single or multiple Kiteboarding Zones between Mordialloc Creek and Patterson River (8 km) would recognise the growth and use of the waters for windsports enthusiasts it would be best placed close to parking and other infrastructure currently relied on by this shore-based user group.

Specifically, this may include an additional Shared Windsports Zone area north of Showers Ave to Douglas Lane and inclusive of the carpark serving the Chelsea Yacht Club. This enables enthusiasts to be compliant when they use the beach and provides an area where windsurfers and kiteboarders may exceed 5 knots except within 50m proximity to other vessels and swimmers. The zone would provide for shared windsports enthusiasts and reasonable tacking angles to clear the zone in one tack. Further consultation with KBV/WV and Chelsea Yacht Club would be required.

4. New Vessels Prohibited Zones near Coleman Road, Aspendale.


A single or multiple Kiteboarding Zones between Mordialloc Creek and Patterson River (8 km) would recognise the growth and use of the waters for windsports enthusiasts it would be best placed close to parking and other infrastructure currently relied on by this shore-based user group.

Community consultation has confirmed year-round use of this area by the kiteboarding and windsurfing communities.

This site should be included in a future local port wide response to consider additional Shared Windsports Zones. Benefits may include ongoing peer management to maintain appropriate on water behaviours and improved safety and self-rescue capacity.

Specifically, this may include an additional Shared Windsports Zone in the area where windsurfers and kiteboarders may exceed 5 knots except within 50 metres proximity to other vessels and swimmers. The zone would provide for shared windsports enthusiasts and reasonable tacking angles to clear the zone in one tack.

Powered and sailing vessels can use this zone at 5 knots.

Any additional zones would require foreshore manager support, additional community education investment, appropriate foreshore configuration/access, and compatibility with other users.


Further partner with the Boating Industry Association (BIA) and PWC retailers to communicate responsibilities around swimmers and reinforce the maximum of 5 knot within 50m of a swimmer rule.


Parks Victoria rangers will continue noting potential dangerous interactions between vessels and swimmers. If resourcing permits, consider out of hours patrols when beach going and PWC use peak.

6. Retain the No Personal Water Craft Zones immediately north and south of Patterson River, Port Phillip (contrary to the recommendations of the 2009 Recommendations Report).

Further partner with BIA and PWC retailers to communicate responsibilities around swimmers and reinforce the maximum of 5 knots within 50m of a swimmer rule.


Parks Victoria rangers will continue noting potential dangerous interactions between vessels and swimmers. If resourcing permits, consider out of hours patrols when beach going and PWC use peak.

7. Retain the No Personal Water Craft Zone at Shoreham in Western Port (contrary to the recommendations of the 2009 Recommendations Report)




8. Alter the proposed permanent Vessels Prohibited Zone near the Point Leo Lifesaving Club to be activated by the use of Lifesaving Club beach flags (amending the recommendations of the 2009 Recommendations Report).






Regular checks with vessel operators berthed in the harbour may be useful.

10. Renaming of all Port Phillip and Western Port ‘Kite Boarding Zones’ to ‘Shared Windsports Zones’.

If the renaming of the zones does not proceed, continue to encourage windsurfers to use Kiteboarding Zones (a complex education and compliance task when port manager resources are limited).

Utilise internet messaging provided at stakeholder representative groups, state-wide level via government and retailers to confirm windsurfers may use Kiteboarding Zones.

11. An exemption to allow all human powered paddle craft to use the Vessels Prohibited Zones (swimming) of Port Phillip and Western Port.

Further extend the messaging provided at a state-wide level via government and retailers to better address the safe use of paddle craft in crowded swimming conditions.

Seek additional funding and resources to increase ranger foot and vessel patrols and include a focus on paddle craft compliance. Potential partnerships other education and compliance agencies and local government.

Opportunity for a local port approach to further focus on the safety and responsibilities of paddle craft operators in busier waterways of Port Phillip and Western Port. May include an online quiz for paddle craft to self-educate on safety duties and vessel operating zones. Consider ‘Paddler’s Code’ education


including signage focused on safe paddling behaviours and the at most congested/busiest beaches and beaches where hire outlets operate regularly.

6.2.3 Benefits and costs

Parks Victoria nominated the following benefits and costs of introducing the proposed waterway rule changes:

1. Minor realignments to the borders of existing Kiteboarding, 5 Knot and Vessels Prohibited Zones at Elwood

Benefits

Improved separation between shared windsports users and swimmers.

Shared windsports users will experience better tacking angles in predominant winds and reduced intersecting tacking angles between users.

Costs to Victorian community and delivered by Parks Victoria:

Approximately $5,000 to move one pile.

Time and effort required of local port manager to communicate rule change.

2. Rationalisation of adjacent Kiteboarding, shared 5 Knot and Vessel Prohibited Zones at Hampton

Benefits

Some improved separation between shared windsports users and swimmers.

Shared windsports users will experience better tacking angles in predominant winds and reduced intersecting tacking angles between users.


Approximately $8,000 to move/remove one pile, one buoy and one sign.


3. Minor expansion of Vessels Prohibited Zones at Showers Avenue, Chelsea

Benefits

Ongoing separation between shared windsports users and swimmers.

More area for swimmers.

Easier beach access for some swimmers.


Approximately $5,000 to move/remove one pile, and one sign.



Benefits

Further ongoing separation between vessel users and swimmers.


Easier beach access for some swimmers.Waterway Rule Decision Page 19 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements


Approximately $10,000 to place two piles and two signs.



Benefits

Further ongoing separation between vessel users and swimmers.


Easier beach access for some swimmers.


Approximately $5,000 to place one piles and one sign.


6. Retain the No Personal Water Craft Zones immediately north and south of Patterson River, Port Phillip (contrary to the recommendations of the 2009 Recommendations Report).

Benefits

Ongoing separation between vessel users (PWCs) and swimmers.


There is little infrastructure cost associated with retaining the current rule.

Time and effort required of local port manager to communicate no change.

7. Retain the No Personal Water Craft Zone at Shoreham in Western Port (contrary to the recommendations of the 2009 Recommendations Report).

Benefits

Ongoing separation between vessel users (PWCs) and swimmers.


Eventually removing old special marks: $10,000.

New leads to better define the zone $6,000.

Time and effort required of local port manager to communicate new arrangements.

8. Alter the proposed permanent Vessels Prohibited Zone near the Point Leo Lifesaving Club to be activated by the use of Lifesaving Club beach flags (amending the recommendations of the 2009 Recommendations Report).

Benefits

Effective separation between vessel users (including PWCs) and swimmers that only operates when swimming is supported by lifesaving services.

Lifesaving patrolled zone is not contradicted by fixed Vessels Prohibited-Swimming Only Zone.



Explanatory signage and additional flags for club and beach: $4,000,



Benefits

Effective separation between vessel users and swimmers.


Signage and buoyage within Harbour including education signs $10,000.


10. Renaming of all Port Phillip and Western Port ‘Kite Boarding Zones’ to ‘Shared Windsports Zones’.

Benefits

More efficient and effective communication with kiteboarders and windsurfers.

Better understanding of zones supporting kiteboarding and windsurfing and how swimmers are protected.


Revised boating safety signage at all sites; approximately 12 sets of signs at $2,000 per site: ($24,000).


11. An exemption to allow all human powered paddle craft to use the Vessels Prohibited Zones of Port Phillip and Western Port.

Benefits

More novice and family paddle sports participants under the supervision of trained lifesavers.

Fewer paddle craft detouring around Vessels Prohibited-Swimming Only Zones into more weather prone waters and with high speed boating traffic.



Parks Victoria support for local lifesavers as rule is introduced.

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


Parks Victoria received over 250 responses from the public consultation.

Park Victoria noted the feedback provided a wide range of opinions and perspectives on the proposed changes, which greatly assisted in determining the safest and fairest solution for each proposed improvement and informed the costs/benefits and user impacts of the proposed changes. Given that the number of respondents was an extremely small percentage of the overall users of the zones, Parks Victoria viewed the community consultation process as primarily an information gathering and perspective building process rather than simplistically viewing it as a “vote”.

Reasons ‘for’ and ‘against’ most of the proposed changes were received. Many other comments were received in the submissions that were outside of the scope of the proposed rules. One proposed change was relatively easy to interpret – the proposed change of ‘Kite Boarding Zones’ to ‘Shared Windsports Zones’ was well received with over 80% supporting the renaming.

Parks Victoria had proposed an option for minor realignments to the borders of existing Kiteboarding, 5 Knot and Vessels Prohibited Zones at Brighton, and options for minor expansion of Vessels Prohibited Zones at Williams Grove, Bonbeach and Gnotuk Avenue, Aspendale, however following public consultation and after considering the feedback received, Parks Victoria did not proceed with these proposals for the following reasons:

With regard to the proposed zone realignments at Brighton, Parks Victoria stated that on balance safety may be marginally improved for vessel operators and swimmers by realigning the zone boundaries at Brighton by reducing key risks however proceeding with the rule change will also effectively reduce the usable area of the Vessels Prohibited-Swimming Only Zone which is a very popular swimming beach in the warmer months and also used year-round by some swimmers.

Regarding the proposed Vessels Prohibited Zone at Williams Grove, Bonbeach, Parks Victoria stated that on balance safety is maintained for vessel operators and swimmers by not extending the Vessels Prohibited-Swimming Only Zone. Williams Grove is the favourite, if not number one, windsports venue in the area. Existing arrangements provide equitable use for all vessel operators and swimmers.

In regard to the proposed Vessels Prohibited Zone at Gnotuk Avenue, Aspendale, Parks Victoria stated that on balance safety is not improved for vessel operators and swimmers by expanding the Vessels Prohibited-Swimming Only Zone. The proposed change would disadvantage/exclude shared windsports users from a very popular site and this is contrary to the principle of equitable use of waterways detailed in section 21 of the Marine Safety Act. Current zones in the area appear to meet the needs of most users.

7. Compliance with Marine Safety Act waterway rule making process

Parks Victoria has complied with the requirements of the Marine Safety Act, including public consultation.

Parks Victoria has submitted the request for the making of a rule in writing, with the required information. The Request included descriptions of the proposed rules with associated maps. Waterway Rule Decision Page 22 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

Following consultation between Parks Victoria and Maritime Safety Victoria, a draft of the proposed rules was submitted.

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 eliminate

Parks Victoria has identified a range of safety issues in Port Phillip and Western Port associated with vessel activities on the waterways to warrant changes to some of the existing waterway rules.

The 2009 Recommendations Report supported changes regarding Vessels Prohibited-Swimming Only Zones and special purpose zones for kiteboarding on the following grounds:

Areas prohibited to vessels were revised or created to provide vessel-free areas in front of Life Saving Clubs and popular swimming areas to improve water safety and reduce potential vessel-swimmer conflicts, and to align with adjacent 5 knot zones and more logical geographical features, such as car parks, access ways and piers.

Special purpose zones for kiteboarding were created or revised to provide a designated area for the rapidly expanding number of kiteboard users in an area, provide a designated area for the activity without conflict with other vessels and swimmers and formalise trial areas that were working well.

The realignment of boundaries to enable kiteboarders/sailboarders to safely navigate to and from the beach due to obstructions and prevailing wind conditions will reduce the potential for interaction with swimmers in adjacent zones.

Therefore, I support the proposals numbered 1 to 5 (above) regarding realignments to the borders of existing Kiteboarding, 5 Knot and Vessels Prohibited Zones at Elwood and Hampton, the expansion of the Vessels Prohibited Zones at Showers Avenue, Chelsea and south of the Patterson River at Carrum, and the new Vessels Prohibited Zone near Coleman Road, Aspendale.

The reasons that Parks Victoria has provided for not implementing the 2009 Recommendations, which would have created a vessel prohibited zones to the north and south of Patterson River (proposal 6), appear to be based mainly on amenity. It is recognised however that the higher frequency of PWCs transiting through bathers/swimmers and the shore has been identified as a significant risk and possibility of increased incidents “by sheer volume” of use is recognised. Parks Victoria has identified that a current high risk exists north and south of Patterson River of an “ongoing chance of PWC operators and


motor vessel operators making poor decisions resulting in a collision with a swimmer”. It is also noted that the trial non-powered vessel zone has also not been implemented.

Although supporting the proposed rules (6), I believe that Parks Victoria should undertake further consultation in relation to the effective and balanced regulation of the waters north and south of Patterson River to fully ascertain the type of existing powered (i.e. non PWC) and non-powered vessel activity, and the appropriateness of establishing designated areas for powered vessels including PWC and non-powered vessels.

I believe that it would be inappropriate at this stage for the 2009 Recommendations to be implemented (i.e. Vessels Prohibited Zones north and south of Patterson River with a trial non-powered vessel area in the northern section), until further consultation is undertaken. As such, the current rules will remain in place for a period of 2 (two) years while additional consultation in relation to these zones is carried out and potential trial zones regulating PWC, powered vessels and bathers are introduced and evaluated on Port Phillip Bay. (See Section 8.1.4)

The proposal (7) to retain the No PWC Zone at Shoreham in Western Port is supported for the same reasons as outlined above for a period of 2 (two) years.

The arguments to ban PWCs in this area relate mainly to safety issues such as the shallow reef, breaking waves and potential interaction with surfers using the area. It is recognised that PWC operators are more likely to be operating in surf breaks when surfers are present than other powered vessels.

Parks Victoria should undertake further consultation in relation to the regulation of the waters at Shoreham to fully ascertain the type of existing non-PWC and non-powered vessel activity, the appropriateness of establishing designated areas for powered vessels and non-powered vessels (especially in the quieter ‘lagoon’ area close to shore). Parks Victoria should also consider a wider transit zone for vessels to safely transit the area when tide and swell allow, which may be effectively delineated by sets of on-shore beacons, thus removing the requirement for in-water aids to navigation.

The proposal (8) to implement a revised Vessel Prohibited Zone at Point Leo (altering the proposed zone in the 2009 Recommendations Report) is supported. The 2009 Recommendations Report supported changes regarding Vessels Prohibited-Swimming Only Zones to provide vessel-free areas in front of Life Saving Clubs and popular swimming areas to improve water safety and reduce potential vessel-swimmer conflicts. The proposal to activate the zone using Lifesaving Club beach flags, so it is not permanently in place, is an appropriate response to the safety issues identified and allows for use of the area by vessels when conditions do not suit swimming and recognises the changing sea conditions which necessitate variable swimming areas.

The proposal (9) for the new safe harbour at Portarlington, to remove the No PWC Zone and replace with a Bathing Prohibited-Boating Only Zone and a Vessel Prohibited Zone in the shallow beach area, is supported. The new harbour and its structures and foreshore facilities warrant changes to the existing waterway rules to suit current and emerging use.

The PWC Prohibited Zone at Portarlington Pier was created to balance competing demands for the area and exclude PWCs due to manoeuvrability issues with other vessels in the busy confined space as well as incompatibility of PWCs berthing at the pier. The configuration of


the new harbour allows for more manoeuvrability and has floating infrastructure making docking suitable for PWC.

Prohibiting bathing in a busy harbour is required to reduce the risk of vessels colliding with swimmers, or vessels avoiding swimmers thereby causing unsafe situations with other vessels in a confined area where direction of travel is essential to safe navigation.

Creating a Vessels Prohibited Zone in the shallow water along the beach within the harbour will reduce the risk of vessel groundings and create a safe sheltered area for swimmers. The effective separation of swimmers and vessels will reduce the risk of unsafe interactions on this popular swimming beach within the busy harbour.

The proposal (10) to rename all Port Phillip and Western Port ‘Kite Boarding Zones’ to ‘Shared Windsports Zones’ is supported. This was the intention of the original 2009 Boating Zone Review, however due to a technicality these zones were not appropriately consulted on as Shared Windsports Zones but rather Kiteboarding Zones. Sailboard Only Zones that existed previously were removed leaving no appropriate zones for sailboarders to undertake their activity. Currently the ‘Kite Boarding Zones’ are being utilised by sailboarders and the renaming of the zones to ‘Shared Windsports Zones’ will reflect current usage.

The proposal (11) to apply an exemption allow all human powered paddle craft to use the Vessels Prohibited-Swimming Only Zones is not supported.

The 2009 Recommendations Report supported changes regarding Vessels Prohibited-Swimming Only Zones based on the following:

Areas prohibited to vessels were revised or created to provide vessel-free areas in front of Life Saving Clubs and popular swimming areas to improve water safety and reduce potential vessel-swimmer conflicts, and to align with adjacent 5 knot zones and more logical geographical features, such as car parks, access ways and piers.

In the context of a Vessels Prohibited and/or Swimming Only Zone, a vessel is a boat or craft which is navigable or steerable and is used to travel on water. This includes motor boats, sail boats or yachts, canoes with oars, PWCs (jet skis), kite boards and kayaks. In this context, a water toy such as an inflatable floating device, body board or surf board is not considered a boat.

Vessel Prohibited Zones are designed to keep vessels away from swimmers by excluding all types of boat (the only craft not included in the definition of a vessel are those classed as flotation devices). There are 29 of these zones located around Port Phillip, situated adjoining established lifesaving and surf lifesaving clubs. It is proposed to retain the Vessel Prohibited Zones to separate vessels from swimmers in areas with high bather densities.

These are sound safety reasons for creating areas prohibited to vessels, which formed the basis on which all the Port Phillip and Western Port Vessel Prohibited Zones were created. The primary safety concern for swimmers is conflict with vessels in shared-use areas. Therefore, allowing the areas to become shared swimming-paddle craft areas will cause concern and increase risk for swimmers, who may expect to be provided with a level of safety and less chance of collision with a vessel (or paddle craft).


As most of the Port Phillip and Western Port vessel prohibited zones are located adjacent to life saving and surf lifesaving clubs, allowing paddle craft into these zones would create an increased burden on surf life savers whose primary focus is on swimmers.

In addition, Vessel Prohibited Zones are present at many other waterways around Victoria and are for the purpose of separating swimmers and vessels. To provide an exemption to allow paddle craft into the zones on Port Phillip and Western Port only would create a confusing situation state wide. Vessel Prohibited Zones should remain as intended: prohibited to all vessels.

Other states such as NSW and Queensland have swimming zones where vessels are prohibited that are triggered by the presence of flags erected by surf lifesavers and outside of these flags another flagged area for paddle craft. Future consideration and investigation could be given to making these zones non-powered vessel zones to allow the use of non-powered vessels, however when and where the lifesaving flags are present the area between the flags becomes a Vessels Prohibited Zone. Life Saving Victoria should be consulted in any review of this nature.

For any rule change I am of the belief that further research is required to look at any alternatives, examine the additional risks to swimmers and life savers, determine how to effectively delineate patrolled areas within the currently zoned Vessel Prohibited Zones, and identify the most effective communication strategies to inform all vessel operators and swimmers of any change to the rules. In addition, I believe that clarification is required to effectively define the types of paddle craft which would be permitted within the current Vessels Prohibited Zones, and to develop a zone description that adequately reflects that the areas are for paddle craft and bathers only.

After considering the safety issues I am of the view that the waterway rules proposed by Parks Victoria that I have supported, reinforced by appropriate signage, education, monitoring and enforcement, will reduce safety issues associated with boating zones on Port Phillip and Western Port.

8.1.2 Alternative ways to address risks and safety issues

Parks Victoria outlined some alternative measures to changing the waterway rules with the proposed rules. Mostly the alternatives involved increased education for waterway users regarding their responsibilities, specifically vessel operators that are not required to be licensed (i.e. kiteboarders, sailboarders, paddlers), reinforcing the 5 knots within 50 metres of a person in the water rule with all vessel users, increased liaison with user groups, the BIA and retailers, and monitoring and recording behaviour.

In addition, increased compliance and enforcement patrols of which Parks Victoria has indicated they have limited resources to undertake this function, was identified as another alternative. Adequate resourcing for compliance and monitoring is an effective way of reducing safety risks to vessel operators and swimmers.

For north and south of Patterson River, there appears to be no real analysis of current or aspirational vessel usage in the area by Parks Victoria.

In the northern area it may be more appropriate to have an area as Non-Powered vessel zone with a specific Vessels Only Zone introduced as one of the ways to reduce potential collisions between swimmers and powered vessels and to enable access to the area.


The zone south of Patterson River has different circumstances with the presence of the Carrum Sailing & Motor Boat Club. To allow for vessel access to/from the club the originally proposed Vessels Prohibited Zone may not be suitable and restricts access for sailing boats. Also, a Vessels Prohibited-Swimming Only Zone in this location is not suitable for swimmers due to the sudden drop off and strong current south of the river.

For the proposal at Shoreham, Parks Victoria did not consider other rule alternatives beyond retaining the No Personal Watercraft Zone. As mentioned previously, consideration could be given to making the area a non-powered vessel zone to allow the use of the quieter ‘lagoon’ area close to shore. Parks Victoria should also consider implementing a wider transit zone for vessels to safely transit the area when tide and swell allow, which may be effectively delineated by sets of on-shore beacons, thus removing the requirement for in-water aids to navigation.

For the renaming of the Kiteboarding Zones to Shared Windsports Zones, the only alternative Parks Victoria proposed was to encourage and promote windsurfers to use the zones regardless. Encouraging non-compliance is not an ideal situation and I would not support this is an adequate alternative to address risks and safety issues.

In regard to allowing paddle craft into Vessels Prohibited Zones, as mentioned above, another option could be to create and manage zones similar to other states where vessels are prohibited when the surf lifesaving flags are present and outside of these flags is another flagged area for paddle craft.

After considering the alternatives to the proposals (1, 2, 3, 4, 5, 8, 9, and 10) I have supported, I believe that in these instances, waterway rules are the most appropriate response to the risks and safety issues identified.

I have also supported proposals (6 and 7) for a 2-year trial period to enable additional consultation on alternatives to the current rules to address risks and safety issues in these areas. I believe that the review of these zones should incorporate the outcomes of any trial zones regulating PWC, powered vessels, non-powered vessels and bathers that are introduced and evaluated on Port Phillip Bay.

For the proposal I have not supported (11), there may be other alternatives which as a result of further consultation may warrant future consideration.

8.1.3 Benefits and costs

Parks Victoria has identified that the proposed waterway rules are expected to benefit waterway users through increased safety and improved separation of swimmers and vessels (kite boarders, sailboarders, powerboats, PWCs, etc), more area and easier access for swimmers, and improved tacking angles and increased understanding and awareness for Shared Windsports Zones.

The costs identified by Parks Victoria were only regarding financial resources – the costs to move or install infrastructure and signage, and costs to communicate rule changes. There may also be costs associated with monitoring and enforcement despite the fact that Parks Victoria has not identified them.

The realignments to the borders of existing Kiteboarding, 5 Knot and Vessels Prohibited Zones and the new Vessels Prohibited Zones and Boating Only Zone is expected to benefit


waterway users by separation of competing and conflicting uses and reducing the risk of unsafe interaction. Benefits to swimmers relate to a relatively safe operating environment for swimming without threat of interaction with vessels and alignment with easier beach access. Benefits to kiteboarders and sailboarders is the improved tacking angles and reduced risk of interaction with swimmers. Boaters will benefit in the harbour by having a safe operating area without the risk of interaction with swimmers.

Additional costs associated with these new and realigned zones relate to the beach areas not being accessible to vessels, however, this will in fact mitigate the navigational hazards posed by swimmers to vessels using the beach areas. I believe Parks Victoria has taken a balanced approach and provided adequate areas to meet the needs of most waterway users.

After considering the benefits and costs of the proposals I have supported I am of the view that the benefits of the above waterway rules outweigh any of the identified costs.

Parks Victoria only identified “ongoing separation between vessel users (PWCs) and swimmers” as a benefit for the proposals (6, 7) to retain the No Personal Watercraft Zones and financial resources as the only costs.

With regard to the proposal (11) for an exemption or rule to allow the use of paddle craft in Vessel Prohibited Zones, Parks Victoria identified benefits to paddle craft of being under the supervision of lifesavers and not needing to detour around the zones going into weather prone waters and high-speed boating traffic. The only costs Parks Victoria identified were financial resources. Lifesavers’ primary focus is the safety of swimmers and the inclusion of paddle craft will only create more confusion for lifesavers and increase the risk of collision with swimmers. These are additional costs to swimmers and the lifesavers. Also, the benefit to paddle craft no longer needing to detour around the Vessel Prohibited Zones will be at the cost of swimmer safety. The primary safety concern for swimmers is conflict with vessels in shared-use areas. Such an exemption or rule would effectively create a shared use area for swimmers and paddle craft thereby removing the safety benefit swimmers have with vessel free areas. It is my belief that the benefits of this proposal are minimal and are substantially outweighed by the identified costs.

8.1.4 Regulation of Personal Water Craft

The increasing use of, and ownership of PWC presents many challenges for the safe and effective regulation of vessel activities on Victorian waterways. Congestion on particular waterways as a result of increased PWC operations presents challenges for ensuring the safety of all waterway users and their ability to enjoy waterways.

Given the increases in congestion and use of waterways it is now reasonable to review the current waterway regulation scheme and to look at alternatives to the often-used prohibition of specific activities as a way of ensuring safe and fair use of waterways.

I am of the belief that for the effective management of waterways in relation to PWC usage a series of trial zones regulating vessels and waterway users should be introduced which can be monitored and assessed and which may address the degree of risk and consequence, and safety issues as a result of current congestion.

Growth and changing use of PWC


The growth in ownership of PWCs such as jet skis, and the increase in licensed operators is outstripping the growth rates of other forms of powered vessels as demonstrated in VicRoads registration data.

Other Powered PWC

Date Registration % Growth

Registration % Growth

Jun-12 152213 14412

Jun-13 152822 0.4% 15067 4.5%

Jun-14 153190 0.2% 15611 3.6%

Jun-16 165252 7.9% 20016 28.2%

Jun-17 167064 1.1% 21095 5.4%

Apr-18 166578 -0.3% 22294 5.7%

Overall Growth 9.4% 54.7%

Many waterway users who don’t ride PWCs generally consider the craft noisy and dangerous and being used in irresponsible ways. Additionally, PWCs are often used near shore, as users display their skills to others. Users will commonly be in the company of friends or relatives using their own PWC, so collisions involving people known to each other are not unusual. As PWC numbers increase, these risks will also increase unless effective interventions occur.

PWC are now commonly shared amongst friends or family, whereby a group will base themselves at a spot on the beach, with people taking turns over the course of the day. This changing usage can mean that PWC can be in almost constant use over the day as people take their turn, increasing the annoyance factor for other beach users who feel that they don’t get a break from the noise of the activity which is an amenity issue for waterway and land managers.

PWC are also being used in greater numbers for a variety of different reasons i.e. towing either people or other equipment such as donuts etc. and more recently for fishing. The use of PWC is unique in that enjoyment is largely gained simply in the riding of them. Other vessels generally are enjoyed for another purpose - fishing, diving, water skiing etc.

In 2017, TSV engaged a research organisation, Instinct and Reason Pty Ltd, to conduct research into the use of personal watercraft (PWC), such as jet skis, in Victoria. This research allowed the following categorisation:

The Cautious PWC User. Estimated to comprise around 57% of PWC users, these people are older, more law-abiding, more risk averse, more likely to insure their craft and hold a PWC endorsement. They use their craft with the family.

The Thrill Seekers. Estimated to comprise around 24% of users, these are younger users (average age 29 years). PWC use is about speed, challenge, thrills – pushing themselves and what they and their craft can do. They use their PWC with friends of a similar age.


The Reckless Users. This group is estimated to comprise around 19% of users. They are similar in age as the Thrill Seekers, often a bit younger. This is the group most likely to be represented in hospitalisation data. They are not frequent PWC users, so they have fewer opportunities to hone their skills and become more competent. This does not detract from their opinion of themselves as skilled users.

Incidents involving PWC

In 2017 TSV engaged the Monash University Accident Research Centre to analyse boating related presentations to hospital emergency departments and subsequent admissions over the period of 2005/06 to 2014/15. From this, we can gain greater insight into the incidents of injury related to boating activity, and accidents involving PWC are represented in this data. ‘Other powered vessels’ (including PWCs) are the most commonly observed vessel designation appearing in this data.

Marine incidents causing serious injury are more likely to involve a young male (15-29 years of age), who has sustained an injury to his lower limbs consistent with PWC collisions (31% of marine related admissions to emergency departments or hospital). With admission rates increasing by an average of 5% over the study period, we can see that this issue will continue to be of concern.

Regulation of Victorian waterways

Waterway regulation has not kept pace with the changing use of PWC and increase in the number of registered PWC, and has historically focused on prohibition, and or regulation focused on shared waterway zones with little consideration of seasonal or mixed-use zones.

The vast majority of Victorian waterways are subject to speed restrictions close to the shore, for coastal and enclosed waters this is generally 5 knots when within 200 metres from shore, for inland waters 5 knots within 50 metres from shore.

In these areas unless specific waterway rules are made all vessels whether powered, non-powered or wind powered, and bathers can utilise these waters. Even where waterways do not have the 5 knots 200 metres from shore or 5 knots 50 metres from shore mixed activities occur.

Increasing congestion on waterways or sections of waterways, particularly during the peak boating season, and increased numbers of particular types of vessels operating in close proximity of bathers, other vessels and each other increases the likelihood of incidents just by the sheer number of waterway users.

Shared zones in particular have operated well for many years however the concentration of mixed water activities is giving rise to community concern as to the safety of using these areas. In particular the regulatory framework for waterway rules and safety i.e. 5 knots within 50 metres of a bather or other vessel may not be adequate when taking into account extreme congestion especially in the summer months.

Separation of waterway users due to this congestion, although restricting the use of areas by particular groups could be considered as an effective form of waterway regulation without unnecessarily favouring one group of users to the detriment of other uses of those waters.

Trialled waterway zones


A trial of shared zones or restricted use zones based on the potentiality of an incident as a result of congestion, previous incidents and noncompliance with waterway rules could be introduced taking into account the seasonal nature of boating activities. The following could be considered as a basis for trial zones:

Buffer zones adjacent to swimming areas where certain vessels or vessel types may be restricted or permitted on a seasonal basis to address waterway user safety.

No PWC zones which recognise that there are significant numbers of PWC using the shared waters of Port Phillip Bay and to address safety issues. Some areas could be prohibited to PWC especially in areas of substantial congestion and noncompliance with waterway rules.

Access lanes or powered vessel only zones to enable PWC and other vessels to transit from the shore to open water with restrictions on other activities in these areas. Such restrictions may apply to bathers and non-powered vessels.

Non-powered vessels zones where separating these activities from general boating reduces the potentiality of incidents by ensuring only certain types of vessels with restricted manoeuvrability use the zone.

The introduction of trial zones presents a more contemporary approach to waterway regulation in that it enables assessments to be made and monitoring to occur to test the appropriateness of any new zones.

8.2 Summary of submissions or comments7

Parks Victoria received 250 submissions from the public consultation. In its Request, Parks Victoria provided a summary of comments made in the submissions and results from the online survey.

Considering millions of people visit and enjoy Port Phillip and Western Port each year, 250 responses is quite a small percentage. Parks Victoria’s approach to use the consultation process to gather information and understand different perspectives rather a “vote” or poll is logical.

By withdrawing three of the original proposals Parks Victoria has obviously considered and agreed with the responses to these proposals.

Some of the responses to proposals, such as to retain the No Personal Watercraft Zones (instead of the Vessels Prohibited Zones already agreed to) and for paddle craft to use Vessels Prohibited Zones, are more difficult to interpret as it appears the responses are divided depending on the respondents’ preferred activity, i.e. swimming, power boating (including PWC), kiteboarding, sailboarding or paddling, and may not always be based on safety.

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

7 MSA s187 (1) (b)Waterway Rule Decision Page 31 of 48Local Port of Port Phillip & Western Port Bay – 2016 Improvements

9. Safety Director’s Decision

I, Cameron Toy, Acting Director, Maritime Safety (as delegate of the Director, Transport Safety), hereby advise that:

after having regard to:

o the mandatory considerations, and

o 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 rules as requested by Parks Victoria for Port Phillip and Western Port to the following effect, for the reasons outlined previously in this document:

Make minor realignments to the borders of existing adjacent Kiteboarding, 5 Knot and Vessels Prohibited Zones at Elwood.

Realign the borders of existing adjacent Kiteboarding, 5 Knot and Vessel Prohibited Zones at Hampton to extend the area available to shared windsports and reduce the Vessels Prohibited Zone.

Expand the Vessels Prohibited Zone at Chelsea to commence at Showers Avenue (currently Avondale Avenue).

Create a new Vessels Prohibited Zone near Coleman Road, Aspendale (from Watkins Street to Hearle Avenue).

Expand the Vessels Prohibited Zone south of the Patterson River at Carrum (from Walkers Road to Progress Avenue).

Create a new Vessels Prohibited Zone near the Point Leo Lifesaving Club to be activated using Life Saving Club beach flags.

Remove the existing No Personal Watercraft Zone at Portarlington Harbour and replace with a new Vessels Prohibited Zone and Boating Only Zone within the newly developed and expanded Portarlington harbour.

Rename all Port Phillip and Western Port ‘Kite Boarding Zones’ to ‘Shared Windsports Zones’.

The rules will come into effect on the date or dates specified in the notice published in the Government Gazette.

In addition, the following rules will remain in place for a period of two years:

The No Personal Watercraft Zones immediately north and south of the Patterson River.

The No Personal Watercraft Zone at Shoreham in Western Port.


Parks Victoria should undertake further consultation in relation to the effective and balanced regulation of the waters north and south of Patterson River and the waters at Shoreham, to fully ascertain the type of existing use and, the appropriateness of establishing designated areas for powered vessels (including PWC) and non-powered vessels and having regard to the principle of equity of use of Victorian waterways.

I am further of the belief that for the reasons detailed in section 8.1.4, Maritime Safety Victoria and Parks Victoria in conjunction with local councils should consider the introduction of a range of trial zones with the aim of addressing congestion and the associated waterway safety risks and at the same time provide for the enjoyment of waterways by the maximum number of people and vessels.

10. Reasons for Decision

Parks Victoria has identified safety risks to vessel operators and other waterway users 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.

Given the current waterway use and the nature of Port Phillip and Western Port, the proposed rules (where agreed) represent an appropriate response to address the safety issues on the waterways.

Parks Victoria has undertaken the required public consultation and adequately addressed the mandatory considerations (i.e. the safety risk, alternative ways of addressing the risk, and the associated benefits and costs).

The final rules, as outlined above, reflect due consideration of the safety issues for waterway users, reduce identified risks such as interaction between swimmers and vessels, ensure a high degree of access to the waterway by a variety of users and are contemporary in nature given the current and projected usage of the waterways.

The current rules north and south of Patterson River and at Shoreham will remain in place for two years pending a further review by Parks Victoria and the trialling of waterway zones.

The proposed rule to allow the use of paddle craft in Vessels Prohibited Zones is not supported as outlined previously, due to increased risk of paddle craft-swimmer interaction, an inadequate safety case with minimal benefit to support the rules and the confusion it would create with vessel prohibited zones at other waterways. If Parks Victoria wishes to pursue a change from Vessels Prohibited Zones to shared use areas for swimmers and paddle craft, further consideration and investigation should be undertaken in conjunction with Life Saving Victoria.

The final rules will be published by notice in the Government Gazette and on the Safety Director’s internet site, in conjunction with the installation of appropriate navigational aids and signage by Parks Victoria and will come into effect on the date or dates specified in the notice.


CAMERON TOYActing Director Maritime Safety Dated: 11/01/2019


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

Parks Victoria submitted the ‘Boating Zone Review Report May 2017’ which was structured to meet the Request to Make a Waterway Rule form and the requirements of MSA.

The Report submitted by Parks Victoria is extensive (over 120 pages long, excluding appendices) and can be found here:http://parkweb.vic.gov.au/explore/bays-rivers-and-ports/westernport/plans-and-projects/boating-zone-review


http://parkweb.vic.gov.au/explore/bays-rivers-and-ports/westernport/plans-and-projects/boating-zone-review

http://parkweb.vic.gov.au/explore/bays-rivers-and-ports/westernport/plans-and-projects/boating-zone-review

Appendix 2 – Map extracts from 2016 Boating Zone Improvements Report














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