Legal access to sewage and the 'Reinvention' of wastewater

Australasian Journal of Natural Resources Law and Policy

Volumn 12, Issue 2, 2008, Pages 115-159

  Gray, Janice ^a   Gardner, Alex ^b  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

^b UNIVERSITY OF WESTERN AUSTRALIA   (Australia)

Author keywords

[No Author keywords available]

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EID: 77953225026     PISSN: 13205323     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (208)

1. Sewer miners are companies or entities who tap into sewers and extract the sewage usually with a view to utilising it for the purposes of recycled water and sludge production. See definition of sewer mining in Part II page 122.
2. We mean the term to apply in two senses: (a) sewage is a product about which it is impolite to speak and (b) sewage may not have been 'been spoken for', that is, it may not have been (clearly) claimed.
3. For a broad discussion of waste see Gay Hawkins, The Ethics of Waste: How we Relate to Rubbish (UNSW Press, Sydney, 2006).
4. Although the 'yuck' factor posed difficulties in relation to the 2006 Toowoomba Water Referendum. See, Peter McCutcheon, 'Toowoomba readies for referendum on sewage recycling', 7.30 Report, ABC Television, 26 July 2006 〈http://www.abc.net.au/7.30/content/2006/sl697935.htm〉 at 4 June 2008.
5. The Queensland Government accepted the independent Local Government Reform Commission's boundary recommendations at the council elections on 15 March 2008. These recommendations have resulted in the number of councils in Queensland being reduced from 157 to 73. Avail 〈http://www.localgovernment. qld.gov.au〉 at 30 June 2008.
6. Queensland Water Commission, Our Water: Urban water supply arrangements in South East Queensland, Final Report (May 2007) avail 〈http://www.qwc. qld.gov.au/Urban+Water+Supply+Arrangements+Report〉 at 2 May 2008.
7. Queensland Water Commission, Our Water-urban water supply arrangements in South East Queensland- Final Report, May 07 vii-ix, particularly x, 〈http://www.qwc.qld.gov.au/myfiles/uploads/institutional%20arrangements/ Urban-Water-Supply-Arrangements-in-SEQ.pdf 〉 at 5 June 2008;
8. Queensland Water Commission, Queensland Water Commission (QWC) Fact Sheet I, Urban Water Supply Arrangements in SEQ: Changes from Present Arrangements (undated) 1 〈http://www.qwc.qld.gov.au/myfiles/uploads/ institutional%20arrangements/CHANGESFACTSHEETl.pdf〉 at 8 May 2008.
9. See also Economic Regulation Authority (Western Australia) (ERA WA), Inquiiy on Competition in the Water and Wastewater Service Sector, Draft Report (ERA WA, 3 December 2007) 33 (this Draft Report avail 〈http://www.era.wa. gov.au/3/573/46/era-reports.pm〉 at 7 May 2008).
10. Queensland Water Commission, Our Water- urban water supply arrangements in South East Queensland-Final Report, above n 9, 3.3, xiii. Note that although the State government proposes to 'own' major water sources, trunk pipelines and water treatment plants, Councils will retain ownership of the local distribution pipeline network and the wastewater treatment plants. Compensation arrangements are being developed where pipelines are being taken over from Councils. See Queensland Water Commission, Water Reform -Frequently Asked Questions 〈http://www.qwc.qld.gov.au/Water+Reform+-+Frequently+Asked+Questions〉 at 5 June 2008.
11. Information from: Australian Government, Department of the Prime Minister and Cabinet. A Discussion Paper on the Role of the Private Sector in the Supply of Water and Wastewater Services (August 2006) ch 1,2, avail 〈http://www.environment.gov.au/water/publications/urban/ water-discussion-paper.html〉 at 7 May 2008.
12. A Discussion Paper on the Role of the Private Sector in the Supply of Water and Wastewater Services Ibid.
13. The Bunbury Water Board, which trades as AQWEST, provides potable water to the Bunbury-Wellington Region. AQWEST does not provide wastewater services. Busselton Water Board, trading as Busselton Water, is another statutory authority providing similar services to AQWEST.
14. Apparently, 90% of the Water Corporation's capital projects were put out to tender in 2006. See Economic Regulation Authority (Western Australia) ('ERA WA'), Issues Paper, Inquiry on Competition in the Water and Wastewater Services Sector (ERA WA 20 July 2007) 12 〈http://www.era.wa.gov.au/cproot/5765/ 26496/20070720%20Issues%20Paper%20- %20lnquiry%20on%20Competition%20in%20the%20Water%20and%20Wastewater%20Services% 20Sector.pdf〉 at 11 September 2007.
15. Ibid i. Also see ERA WA, Inquiry on Competition in the Water and Wastewater Services Sector, Draft Report (3 December 2007), above n 9.
16. Australian Government, Department of the Prime Minister and Cabinet, A Discussion Paper on the Role of the Private Sector in the Supply of Water and Wastewater Services, above n1l, 12 [3.4.1]. A public/private partnership operates between SA Water and Riverland Water. It is responsible for the construction and operation of 10 treatment plants in South Australia to supply filtered water to regional and Adelaide Hills communities. See Filtered Water for Rural South Australia 〈http://www.sawater.com.au/SAWater/YourHome/ RuralLiving/Filtered+water+for+rural+South+Australia.htm〉 at 5 June 2008.
17. United Water is 95% owned by Veolia Water Australia: Veolia Water Australia and New Zealand website: 〈http://www.veoliawater.com.au/en/ veoliawater/uwi/〉 at 2 May 2008. The remaining 5% is owned by Thames Water and Halliburton KBR: SA Water website 〈http://www.sawater.com.au/SAWater/ AboutUs/AboutSAWater/United+Water.htm〉 at 2 May 2008.
18. See SA Water website, above n 17; and United Water website: 〈http://www.uwi.com.au/frames-adl.php〉 at 2 May 2008.
19. Australian Government, National Water Commission, National Performance Report 20062007, 214 〈http://www.nwc.gov.au/nwi/docs/national-performance- report/TAS.pdf〉 at 5 June 2008;
20. Australian Government, National Water Commission, Water Governance Arrangements in Australia, (diagram) 1 〈http://www.nwc.gov.au/nwi/water- governance/pdfs/tas-supply.pdf〉 at 5 June 2008.
21. See SAHA International, 'Future Regulation of the Tasmanian Water and Sewerage Sector' Proposed Position Paper (Part A, November 2007, and Part B, January 2008), avail 〈http://www.treasury.tas.gov.au/domino/dtf/dtf.nsf/v- pages/3F8B6C67E00092E5CA2573A3000ElC2B〉 at 5 June 2008;
22. Department of Treasury and Finance, Tasmania, Water and Sewerage Infrastructure Review, 'Questions and Answers on the Reform of Water and Sewage' 〈http://www.treasury.tas.gov.au/domino/dtf/dtf.nsf/v- pages/ 2F958B465D5A63B9CA2573FD001692C9〉 at 5 June 2008.
23. As at July 2007 a review was in progress which would consider the amalgamation of councils responsible for providing water and wastewater services. See ERA WA, Issues Paper, Inquiry on Competition in the Water and Wastewater Services Sector, above n 14, 16. For comment on the positions in Queensland, Tasmania, Western Australia and Victoria see SAHA International Limited, Urban Water Update 〈http://www.sahainternational.com/sahawr/- assets/main/lib90004/urban%20water%20update%20(2).pdf〉 at 5 June 2008;
24. re Hobart Water see Department of Infrastructure, Energy and Resources, Tasmania, Water Supply 〈http://www.iris.tas.gov.au/infrastructure/water/ supply〉 at 7 June 2008.
25. See Australian Government, Department of the Prime Minister and Cabinet, A Discussion Paper on the Role of the Private Sector in the Supply of Water and Wastewater Sen〉ices, above n 11, ch 1,2.
26. These parasites can cause gastroenteritis in humans and, as a result of unacceplably high levels being found in their drinking water, Sydneysiders had to boil all drinking water while the problem lasted. See Sydney Water Inquiry (Peter McClellan, QC), Fifth Report. Final Report (New South Wales Premier's Department, 1998) 〈http://www.dpc.nsw.gov.au/data/assets/pdf-file/0016/1536 l/Fifth-Report---FinaI-Report-Volume-2---December-1998.pdf〉 at 2 May 2008 ('Final Report). According to Christopher Sheil, Commissioner McClellan noted that water from the privatised Prospect Water Filtration Plant was probably a source of the problem but the company (Australian Water Services) which built and operated the plant denied all responsibility because its contract did not require that it test for Cryptosporidium or Giardia: Christopher Sheil, Water's Fall: Running the Risks with Economic Rationalism (2000) 113-114
27. (See, re wording of the contract: Final Report 176-7). The Final Report itself noted two probable reasons for the presence of the Cryptosporidium and Giardia: heavy rains following a period of drought which transported the organisms from the catchment to the supply infrastructure, and operational difficulties at the main treatment plant: at 7-8, 76-77
28. See Alex Gardner, 'Law and Policy for Sustainable Water Quality Management: Focus on the Sydney Water Catchments' (2003) 8 The Australasian Journal of Natural Resources Law and Policy 99-128.
29. See also Christopher Sheil, Water's Fall: Running the Risks with Economic Rationalism (2000) 5, 108, 113-14, 128, 131-154 and 174.
30. In 2007, 107 local and county councils provide water, sewerage and drainage services in rural and regional New South Wales. See Department of Water and Energy ('DWE'), Water Industry Competition Act 2006 Regulations Consultation Paper (11 June 2007) 5 〈http://thecabinetoffice.clients.squiz. net/-data/assets/pdf-file/0008/7892/190615-WICA-Consultation-paper.pdf〉 at 4 August 2007.
31. There are five smaller public water utilities supply authorities that operate water, supply, sewerage and or drainage function under the Water Management Act 2000 (NSW). These include Gosford City Council and Wyong Shire Council.
32. Information from: Australian Government, Department of the Prime Minister and Cabinet, A Discussion Paper on the Role of the Private Sector in the Supply of Water and Wastewater Services, above n 11, eh 1,2.
33. Ibid, ch 3, 13. The third party access regime is restricted to facilitating access to the excess capacity of the infrastructure in that existing user rights may not be disturbed without compensation: see Trade Practices Act 1974 (Cth) s 44W. For further discussion, see iii-iv of Tasman Asia Pacific, 'Third Party Access in the Water Industry. An assessment of the extent to which services provided by water facilities meet the criteria for declaration of access' (September 1997) 〈http://www.ncc.gov.au/pdf/ PIReWrTa-001.pdf〉 at 5 June 2008.
34. BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157 [125] (Greenwood J) on the purpose of Part III A of the Trade Practices Act 1974 (Cth). See also Water Industry Competition Act 2006 (NSW) s 21.
35. See Australian Government, Department of the Prime Minister and Cabinet, A Discussion Paper on the Role of the Private Sector in the Supply of Water and Wastewater Sen'ices, above n 11, ch 3, 13. Sewage sludge (the solids) may be disposed of in a variety of ways including as fertiliser. In Galway, Ireland, the sludge is thickened and pasteurised and the dried sludge is dewatered and transported to sites where it is spread on land as an organic fertiliser: Galway City Council, 'Mutton Island Waste Water treatment Plant' 〈http://www. galwaycity.ie/AHSer\'ices/WaterandDrainage/WasteWaterandSewage/ MuttonIslandWasteWaterTreatmentPlant/〉 at 7 May 2008.
36. See also ERA WA, Issues Paper, Inquiry on Competition in the Water and Wastewater Sen'ices Sector, above n 14, 25. Issues associated with sewage sludge use are discussed in Rosana Faria Vieira and Celia Maria Maganhotto de Souza Silva, 'Soil amendment with sewage sludge and its impact on soil microflora' 3(2003) 4(1) Brazilian Journal of Microbiology (Sao Paulo) 56-58 〈http://www.scielo.br/scielo.php?script=sci-arttext&pid= S1517-83822003000500019〉 at 5 June 2008;
37. P R Warman and W C Termeer, 'Evaluation of sewage sludge, septic waste and sludge compost applications to corn and forage: yields and N, P and K content of crops and soils' (2005) 96(8) Bioresource Technology 955-61;
38. th conference of the Australian Society of Agronomy, Toowoomba (Old), January 1996) 〈http://www.regional.org.au/au/ asa/1996/contributed/235walcott.htm〉 at 24 June 2008.
39. Sydney Water, Sewer Mining: How to establish a sewer mining operation (May 2006) 〈http://www.sydneywater.com.au/Publications/FactSheets/ SewerMiningHowToEstablishASe werMiningOperation.pdf#Page=l〉 at 10 October 2007. See also Application by Services Sydney Ply Limited [2005] ACompT 7 (21 December 2005) at [45];
40. and IPART's description of sewer mining in IPART, Pricing arrangements for recycled water and sewer mining: Sydney Water Corporation, Hunter Valley Corporation and Wyong Shire Council (September 2006) Determinations 8 & 9, 65 〈http://www.ipart.nsw.gov.au/files/Final%20Report%20- %20Pricing%20Arrangements%20for%20recycled%20water%20and%20sewer%20mining%20- %20September%202006%20-%20website%20document.PDF〉 at 7 May 2008. Clearly sewage could also be mined for other products such as bio-solids and trace minerals, for example.
41. The authors wish to acknowledge the assistance of Dr Wendy Timms, Senior Engineer, Water Research Laboratory, UNSW School of Civil and Environmental Engineering, Manly Vale, NSW for her assistance in explaining the practicalities of sewer mining. Note that sewer miners in the Sydney region need to gain local council approval for the particular end use of the recycled water. Note also that Melbourne City Council's building, Council House Two, uses Melbourne's sewers as a source of recycled water for the running of evaporative cooling systems and toilet flushing. See ABC TV, Council House Two - the eco-office block of the future (19 April 2007) 〈http://www.abc.net.au/catalyst/ stories/sl901482.htm〉 at 5 June 2008.
42. Sewer mining projects in Sydney include those at Kogarah and Gordon Golf Courses and the 'Olympic' suburb of Newington. (At Newington recycled water is sold to customers at 15 cents less per kilolitre than potable water). Other sewer mining operations exist in Southwell Park in ACT (which has been operating since 1995), Cranbourne Sewer Mining Facility near Melbourne (which has been operating since 1974), the Kings Domain Gardens in Melbourne and the Rocks Water Mining Project in Brisbane.
43. Note that public utilities are usually the infrastructure owners.
44. th century works pre-outfall use, see Sharon Beder, 'From Sewage Farms to Septic Tanks: Trials and Tribulations in Sydney' (1993) 79(1 &2) Journal of the Royal Australian Historical Society 72-95 〈www.uow.edu.au/arts/sts/sbeder/sewage/history2. html〉 at 8 June 2008;
45. F J J Henry, The Water Supply of Sewerage of Sydney (Halstead Press, Sydney, 1939) 171-172 as cited in Beder at n 22.
46. See Sydney Water, Major Projects, Illawarra Wastewater, Scope of Project, 〈http://www.sydneywater.com.au/MajorProjects/IllawarraWastcwater/Scope. cfm〉 at 8 June 2008.
47. See Sydney Water Corporation's, Indicative Sewer Network Access Agreement, Discussion Draft, 1 August 2007, [8.1]. The draft agreement envisages comprehensive monitoring of the third party access seeker's customer input volumes. It also acknowledges that a certain level of flow is necessary for the sewerage system to operate effectively while at the same time the third party access seeker needs to retain a certain volume of sewage to operate its plant. Accordingly an interdependent Flow Management Agreement is contemplated in cl 8.1(b)(iv).
48. See 'Sydney Water Sewer Mining Policy' in Sydney Water, 'How to Establish a Sewer Mining Operation', above n 29, 9.
49. The Australian Energy Market Commission sets rules and policy in the electricity sector. It operates in conjunction with the National Electricity Law ('NEL') which is contained in a Schedule to National Electricity (South Australia) Act 1996 (SA). The NEL is applied as law in each participating jurisdiction of the national electricity market ('NEM') by application statutes, for example the National Electricity (Victoria) Act 2005 (Vic). In turn, the legislation is supported by regulation providing access regimes. Observe that less frequently third party access has applied to transport supply chains such as sea ports and airports. See Marsden Jacob Associates, Third Party Access in Water and Sewerage Infrastructure: Implications for Australia, Research Paper prepared for the Australian Government Department of Agriculture, Fisheries and Forestry (22 December 2005) 9 〈http://www.daffa.gov.au/data/assets/pdf- file/0019/29260/3-water-sew-infr.pdf〉 at 4 August 2007.
50. See also Lincoln Flor and Enzo Defilippi, 'Port Infrastructure: An Access Model for the Essential Facility' (2003) 5(2) Maritime Economics and Logistics 116-132
51. Department of Environment, Food and Rural Affairs ('DEFRA'), Water Act 2003 - Water supply licensing: Response to the Consultation on Collective Modifications of Standard Licence Conditions of Water Supply Licences (June 2005) 1 〈http://www.defra.gov.uk/Environment/water/industry/wa03regs/ licensemods-response.pdf〉 at 8 May 2008. See also Marsden Jacob Associates, above n 37, 17.
52. Ofwat is the water and sewerage service regulation authority in England and Wales.
53. Scott S Slater, 'A Prescription for Fulfilling the Promise of a Robust Water Market' (2005) 36 McGeorge Law Review 254-293
54. Litigation has ensued. See Metropolitan Water District, v Imperial Irrigation District, 96 Cal Rptr.2d 314, 316 (Cal Ct Appeal 2000);
55. San Luis Coastal Unified School District v City of Morro. Bay S.B. 621 (2002) (as amended in the California State Assembly on 28 August 2002). Note the Katz Wheeling Law had in mind that fair compensation would be paid for use. See Assembly Bill No 2746, Section 1810, California, 1986, as quoted in Marsden Jacob Associates, above n 37, 16.
56. Marsden Jacob Associates, above n 37, 22.
57. Ibid..
58. In October, 2004, Lakes R Us applied to the National Competition Council ('NCC') under Part 1I1A of the Trade Practices Act 1974 (Cth). The NCC recommended to the Premier that no declaration be made. Eventually Lakes R Us decided not to pursue its application.
59. Note that the ERA WA, Inquiry on Competition in the Water and Wastewater Services Sector, Draft Report, above n 9, recommends that a State-based third party access regime be implemented in Western Australia: at xi.
60. Freehills Solicitors, Competition and Market Regulation Update November 2006 (20 November 2006) 〈http://www.freehills.com.au/publications/ publications-6730.asp〉 at 4 August 2007.
61. After the Chair of the Independent Committee of Inquiry, Professor Frederick G Hilmer. Officially it is known as the Report by the Independent Committee of Inquiry into a National Competition Policy for Australia (August 1993) or the 'National Competition Policy Report' avail 〈http://www.ncc. gov.au/articleZone.asp?articleZonelD=16〉 at 5 August 2007.
62. See Centre for International Economics, Principles for national reform, Learning Lessons from NCP, Report prepared for the National Competition Council as part of the NCC Occasional Series (October 2005) 〈http://www.ncc.gov.au/ pdf/PlReNCP-003.pdf〉 at 5 August 2007.
63. The introduction of the Water Management Act 2000 (NSW) is an example of legislative change initially tied to NCC payments, while the Water Industry Competition Act 2006 (NSW) follows up on the government's commitment to private sector involvement found in its Metropolitan Water Directorate, Consultation Paper: Creating a dynamic and competitive metropolitan water industry (May 2006) 4 〈http://www.waterforlife.nsw.gov.au/data/assets/pdf-file/0013/1444/smwp- consult-paper-l.pdf〉 at 5 August 2007. Also see Rosemary Lyster, Zada Lipman, Nicola Franklin, Graeme Wiffer and Linda Pearson, Environmental and Planning Law in New South Wales (Federation Press, Sydney, 2007) 275.
64. Trade Practices Act 1974 (Cth) Part I11A, Division 2.
65. Trade Practices Act 1974 (Cth) Part I11A, Division 6.
66. Trade Practices Act 1974 (Cth) s 44N provides for the Commonwealth Minister to declare that a State regime is an effective access regime.
67. If more than one state provides the service for which access is sought, vested jurisdiction or other co-operative legislative schemes should be used so that parties need only deal with a single access process. See NCC, Competition Principles Agreement -11 April 1995, s 6(4), the text of which is found in NCC, Compendium of National Competition Policy Agreements (2nd ed, June 1998) 13-26 avail 〈http://www.ncc.gov.au/publication.asp7publicationID= 99&activityID=39〉 at 8 May 2008.
68. The criteria are set out in the Trade Practices Act 1974 (Cth) Part IIIA, Division 2, s 44G(2) for the Council and s 44H(4) for the Minister.
69. Trade Practices Act 1974 (Cth) Part IIIA, Division 3.
70. Trade Practices Act 1974 (Cth) s 44W.
71. Trade Practices Act 1974 (Cth) s 44B; where 'service' is defined for the purposes of Part IIIA.
72. This definition is currently being litigated in the context of third party access to a railway line used for the transport of iron ore in Western Australia's Pilbara region: BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157 (5 October 2007), from which the High Court of Australia has granted special leave to appeal: BHP Billiton Iron Ore v The National Competition Council [2008] HCA Transcript 119 (Kirby, Hayne, Crennan JJ) (7 March 2008) 〈http://www.austlii.cdu.au/au/other/HCATrans/2008/9. html〉 at 20 June 2008. The issue there concerns the paragraph (0 exclusion of a production process from the definition of a service. The Full Federal Court held that the use of the rail line as part of a production process does not qualify for the exemption. The opposite conclusion could have significant implications for a similar argument by a sewerage service provider that its sewerage network was part of a production process for recycled water.
73. Marsden Jacob Associates, above n 37, 86.
74. Under s 44H(9) of the Trade Practices Act 1974 (Cth).
75. Application by Sen'ices Sydney Pty Limited [2005] ACompT 7 (21 December 2005).
76. Postage stamp' pricing is uniform pricing, meaning that the same price per unit is charged irrespective of where the sewage is transported from across Sydney.
77. See Australian Competition and Consumer Commission ('ACCC'), Access Dispute between Services Sydney Ply Ltd and Sydney Water Corporation, Arbitration Report, 19 July 2007 avail 〈http://www.accc.gov.au/content/ index.phtml/itemld/793015〉 at 11 September 2007. The ACCC ruling did not determine a pricing formula for the interconnection services, because that issue was not ripe for determination.
78. According to Andrew Stoner, Member for Oxley- Leader of the National Party, the New South Wales government spent approximately, $1.6 million in legal fees opposing the application: NSW, Parliamentary Debates, Legislative Assembly (Extract) 14 November, 2006, 3801 〈http://www.parliament.nsw.gov. au/prod/PARLMENT/hansArt.nsf/V3Key/LA2006l 114036〉 at 28 July 2007.
79. See Sydney Water Corporation ('SWC'), National Competition Council's Draft Recommendations on the application by Services Sydney for Declaration of Sewage Transmission and Interconnection Services Provided by Sydney Water Corporation (November 2004) ('/VCC Draft Recommendations') 3 〈http://www.ncc.gov.au/pdf/DEWASSSu-022.pdf〉 at 8 August 2007. Ibid.
80. National Competition Council's Draft Recommendations on the application by Services Sydney for Declaration of Sewage Transmission and Interconnection Services Provided by Sydney Water Corporation, Ibid.
81. For an analysis of the lack of economic viability, see 30-1. A 'dependent market' is the defined market for the proposed services.
82. SWC, NCC Draft Recommendations, above n 64, 4.
83. The pricing methodology was set out in the ACCC's pricing determination of July 2007
84. The pricing methodology was set out in the ACCC's pricing determination of July 2007. See ACCC, Access Dispute between Services Sydney Pty Ltd and Sydney Water Corporation, Arbitration Report, above n 62.
85. WICA received assent on 27 November 2006 but will only commence once the Regulations have been drafted and finalised.
86. For example, Western Australia, where the ERA WA is currently conducting an Inquiry on Competition in the Water and Wastewater Services Sector: ERA WA, Inquiry on Competition in the Water and Wastewater Services Sector, Draft Report, above n 9, 58ff.
87. NSW Government, 2006 Metropolitan Water Plan (released May 2006) 115〈http://www.waterforlife.nsw.gov.au/data/assets/pdf-file/0015/1446/ wfl2006.pdf〉 at 15 June 2008.
88. I PART, Investigation into Water and Wastewater Service Provision in the Greater Sydney Region-Final Report (October 2005) 〈http://www.ipart.nsw. gov.au/files/Section%209%20Investigation%20into%20Water%20and%20Wastewatero/ o20Service%20Provision%20-%20Final%20Report%20-%2028%20November%202005. PDF〉 at 16 August 2007.
89. Ibid 8-11 (the full 22 recommendations). Investigation into Water and Wastewater Service Provision in the Greater Sydney Region-Final Report
90. See also Metropolitan Water Directorate, Consultation Paper: Creating a dynamic and competitive metropolitan water industry, above n 48, 4.
91. See long title of Act 〈http://www.austlii.edu.au/au/legis/nsw/ consol-act/wica2006333/longtitle.html〉 at 8 June 2008.
92. Regulations for access are being developed in a separate process.
93. See DWE, Water Industry Competition Act 2006 Regulations Consultation Paper, above n 23, 8.
94. Water Industry Competition Act 2006 (NSW) s 5.
95. Water Industry Competition Act 2006 (NSW) s 7.
96. See DWE, Water Industry Competition Act 2006 Regulations Consultation Paper, above n 23.
97. Metropolitan Water Directorate, Consultation Paper: Creating a dynamic and competitive metropolitan water industry, above n 48, discusses a third party access regime: at 18.
98. Water Industry Competition Act 2006 (NSW) s 21, statement of the objects of Part III, Access to Infrastructure Services.
99. Water Industiy Competition Act 2006 (NSW) s 4 and Dictionary.
100. See Indicative Sewer Network Access Agreement between Sydney Water Corporation and the Access Rights Holder, Discussion Draft (1 August 2007). Under cl 8(2)(a) Sydney Water agrees to make available the Extraction Proportion/Volume for extraction by the Access Rights Holder while cl 8(2)(b) requires the Access Rights Holder to extract the agreed volume or proportion. It is possible, however, that 'ownership' of the sewage will first need to be clarified and resolved. Note also that a certain level of sewage needs to remain in the system so as to maintain flow and assist functionality.
101. Water Industry Competition Act 2006 (NSW) s 22 and Schedule 1 of the Act.
102. Water Industry' Competition Act 2006 (NSW) s 23 (a)-(e) or, if the access is declared from the outset, s 22 and Schedule 1.
103. Water Industry Competition Act 2006 (NSW) s 38.
104. Water Industry Competition Act 2006 (NSW) s 38 (a)-(d).
105. Water Industry Competition Act 2006 (NSW) s 40.
106. Arbitration is governed by s 40 of the Act, in conjunction with the Regulations and the Commercial Arbitration Act 1984 (NSW)
107. as well as s 24B-24E of the Independent Pricing and Tribunal Regulatory Act 1992 (NSW).
108. According to s 40( 11), IPART must publish the arbitration determination on its website.
109. See Water Industry Competition Act 2006 (NSW) s 25(5)(a) and Division 4.
110. See Water Industry Competition Act 2006 (NSW) s 25(5)(a) and Division 5.
111. See Water Industry Competition Act 2006 (NSW) s 25(5)(b).
112. Water Industry Competition Act 2006 (NSW) s 40.
113. Sydney Water, Sewer Mining: How to establish a sewer mining operation, above n 29, 8. See later discussion on property and sewage sewage.
114. DWE, Water Industry Competition Act 2006 Regulations Consultation Paper, above n 23, 11.
115. Refer to earlier section in this article 'Present Institutional Frameworks for Water and Wastewater'.
116. It is notable that in August 2007, SA Water and United Water were heavily criticised in a report based on a two year study undertaken by the Total Environment Centre. It found that Adelaide's water pricing scheme was the worst in the country and that the two above mentioned companies were lacking in transparency and accountability. Adelaide's water pricing process was also regarded as the 'worst in the nation'.
117. See ABC News (abc.net.au). 'Adelaide's water pricing process the "worst in the nation'" 10 August 2007 〈http://www.abc.net.au/ news/stories/2007/08/10/2001605.htm〉 at 11 September 2008.
118. This was not the first time that the private operator, United Water, had been the subject of criticism. In 1996, one year after the United Water contract was signed, the company was also criticised for its part in what was colloquially known as Adelaide's 'big pong', when a 'widespread and offensive stench' covered the city. A team of Queensland University investigators ultimately traced the smell to raw sewage, which had accidentally been released into open treatment ponds at the city's Bolivar treatment plant. The head investigator was quoted as concluding: 'It was dollars driving everything. The big emphasis was on minimising costs. The Bolivar incident is an illustration of what can happen when things like monitoring and maintenance are cut to the bone.'
119. See Peter Mac, 'Water Privatisation the problem, not the solution', The Guardian (Sydney), 14 May 2003, Issue No 1137 〈http://www.cpa.org.au/ garchve03/1137water.html〉 at 30 July 2007. (According to Mac, water treatment plant maintenance staff had been cut by one third.)
120. See explanation at South Australian Central website: 〈http://www. sacentral.sa.gov.au/site/page.cfm?u=58&area=2&c=41728〉 at 8 June 2008.
121. Metropolitan Water Directorate, Creating a dynamic and competitive metropolitan water industry, above n 48.
122. Water Industry Competition Act 2006 (NSW) s 101 and Schedule 2. The authors also wish to acknowledge their indebtedness to Luke Woodward, Partner, Gilbert+Tobin Lawyers, Sydney, for his discussions with Janice Gray in relation to the WICA Licensing Scheme Regulations.
123. NSW Cabinet Office ('NSWCO'), Water Industry Competition (Access to Infrastructure Services) Regulation 2007 〈http://www.cabinet.nsw.gov.au/ data/assets/pdf-file/0012/8400/Draft-Regulation.pdf〉 at 14 June 2008.
124. NSWCO, Water Industry Competition (Access to Infrastructure Services) Regulation 2007, Div2, 8(3).
125. NSW Department of Premier and Cabinet, Technical assistance for Development of the Water Industry Competition (Access Regulation), Final Report (May 2007) 2 〈http://www.cabinet.nsw.gov.au/data/assets/pdf-file/001l/8399/ GHD-Report.pdf〉 at 14 June 2008.
126. DWE, Water Industiy Competition Act 2006 Regulations Consultation Paper, above n 23, 7.
127. This concept is explained by Rod Rhodes, 'The Hollowing Out of the State: the changing nature of public service in Britain' (1964) 65 Political Quarterly 138.
128. See Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (1988).
129. Australian Government, Office of Best Practice Regulation, Best Practice Regulation Handbook (August 2007) 〈http://www.obpr.gov.au/data/assets/pdf- file/0004/68998/handbook.pdf〉 at 13 May 2008.
130. Australian Government, Rethinking Regulation, Report of the Taskforce on Reducing Regulatory Burdens on Business, Government's Final Response (18 August 2007) which includes each of the Taskforce Report's 178 recommendations and the Government's responses: avail 〈http://www.treasury.gov.au/contentitem.asp? ContentlD=l141&NavID=〉 at 13 May 2008.
131. Julia Black, 'Tensions in the Regulatory State' [2007] Public Law 58, 62.
132. See also Julia Black, 'Critical Reflections on Regulation' (2002) 27 Australian Journal of Legal Philosophy 1; and Julia Black, 'Critical Reflections on Regulation' (London School of Economics / Economic and Social Research Council ('ESRC') Centre for Analysis and Risk Regulation ('CARR') Discussion Paper No 4 (2002)) avail 〈http://www.lse.ac.uk/collections/CARR/documents/ discussionPapers.htm〉 at 11 September 2007.
133. Stoner, above n 63.
134. See Application by Services Sydney Pty Limited [2005] ACompT 7 (21 December 2005) at [192]-[208], where the Tribunal discusses mainly arguments about the public interest in providing access under the then proposed State regime and potentially adverse impacts on service pricing.
135. See Public Interest Advocacy Centre ('PIAC'), Submission to Consultation Paper on Introducing a dynamic and competitive metropolitan water industry (7 June 2006) 11 〈http://www.waterforlife.nsw.gov.au/data/assets/pdf-file/ 0007/1501/PubliclntcrestAdvocacyCentre-070606.pdf〉 at 12 September 2007.
136. Submission to Consultation Paper on Introducing a dynamic and competitive metropolitan water industry 11 〈http://www.waterforlife.nsw.gov.au/data/ assets/pdf-file/0007/1501/PubliclntcrestAdvocacyCentre-070606.pdf〉 2007. Ibid.
137. ACCC, Access Dispute between Sen'ices Sydney Pty Ltd and Sydney Water Corporation. Arbitration Report, above n 62.
138. Application by Senices Sydney Pty Ltd [2005] ACompT2 (11 April 2005) at [201] 〈http://www.austlii.edu.aU/au/cases/cth/ACompT/2005/7.html〉 at 10 October 2007.
139. Application by Services Sydney Pty Ltd [2005] ACompT2 (11 April 2005) at [70]-[73].
140. See PI AC, above n 109. 11.
141. Trade Practices Act 1974 (Cth) s 44X and Water Industry Competition Act 2006 (NSW) s 41.
142. ACCC, Access Dispute between Services Sydney Pty Ltd and Sydney Water Corporation. Arbitration Report, above n 62.
143. Access Dispute between Services Sydney Pty Ltd and Sydney Water Corporation. Arbitration Report 62, Ibid I.
144. See ERA WA, Inquiiy on Competition in the Water and Wastewater Services Sector Draft Report, above n 9, 64.
145. Email from Dr Michael Keating, Chairperson, 1PART to Alex Gardner, 16 December 2007.
146. Water Industry Competition Act defines (NSW) 41 (3), '[p]ostage stamp pricing' as the 'system of pricing in which the same kinds of customers within the same area of operations are charged the same price for the same service'.
147. Note that Sydney Water has greenfield sites at Rouse Hill, Sydney Olympic Park/Newington, Hoxton Park and Ropes Crossing, for example. See Sydney Water, 'Recycling Water for Homes' (undated) 〈http://www.sydneywater.com.au/ SavingWater/RecyclingandReuse/RecyclingAndReuseInAction/RecyclingForHomes. cfm〉 at 8 June 2008.
148. Sydney Water, 'Recycling Water -Frequently Asked Questions' 〈http://www.sydneywater.com.au/SavingWater/RecyclingandReuse/ RecyclingAndReuseInAction/RecyclingWaterFAQs.cfm〉 at 8 June 2008.
149. It would appear to be so based on Sydney Water's own figures. See response to Question 6 in Sydney Water, Recycling Water -Frequently Asked Questions, above n 121.
150. In greater Sydney 70 per cent of water is used in homes. Even if Sydney's top 1,000 commercial and industrial firms used nothing but recycled water, the amount would only be about 13 per cent of Sydney's total water use.' See also response to Question 7.
151. I23 Based on conversations between water law practitioners and Janice Gray on 7 August 2007.
152. Stoner, above n 63.
153. See following discussion of property rights.
154. IPART, Pricing arrangements for recycled water and sewer mining: Sydney Water Corporation. Hunter Vallev Corporation and Wyong Shire Council (September 2006), above n 29, 66.
155. See DWE, Water Industry Competition Act 2006 Regulations Consultation Paper, above n23, 33.
156. PIAC, above n 109, 5. Figures said to be based, in part, on research commissioned by IPART.
157. Ibid. Figures said to be based, in part, on research commissioned by IPART
158. IPART, Promoting retail competition and investment in the NSW electricity industry: Regulated electricity tariffs and charges for small customers 2007 to 2010, Electricity: Final Report and Final Determination (June 2007) 1, avail 〈http://www.ipart.nsw.gov.au/investigation-content.asp?industry= 2§or=3&inquiry= 108&doctype=7&doccategory=1&docgroup= l〉at 11 September 2007.
159. PIAC, above n 109, 5.
160. The circumstances included: (1) the high levels of dissatisfaction with the incumbent electricity supplier in South Australia; (2) the South Australian Government's offer to concession card holders of a $50 cash rebate to switch; (3) the existence of comparative price information services in Victoria and South Australia which do not exist in New South Wales; and (4) the fact that Victoria and South Australia are the second and third most active markets in the world
161. The circumstances included: (1) the high levels of dissatisfaction with the incumbent electricity supplier in South Australia; (2) the South Australian Government's offer to concession card holders of a $50 cash rebate to switch; (3) the existence of comparative price information services in Victoria and South Australia which do not exist in New South Wales; and (4) the fact that Victoria and South Australia are the second and third most active markets in the world. See IPART, Promoting retail competition and investment in the NSW electricity industry: Regulated electricity tariffs and charges for small customers 2007 to 2010 (Final Report), above n 130, 104.
162. IPART, Promoting retail competition and investment in the NSW electricity industry: Regulated electricity tariffs and charges for small customers 2007 to 2010 (Final Report), above n 130, 104.
163. Promoting retail competition and investment in the NSW electricity industry: Regulated electricity tariffs and charges for small customers 2007 to 2010 (Final Report),130, 104., Ibid 105.
164. See ABC News, 'Union to fight NSW electricity privatisation' 8 December 2007 〈http://www.abc.net.au/news/stories/2007/12/08/2113412.htm〉 at 21 December, 2007.
165. for popular antipathic comment on the concept, see comments made in response to crikey.com.au, Matt Marks ('Merrill Lynch, Citigroup, MacBank alumnus'),'NSW Electricity privatisation: Will Luddite economics rule in NSW?' 13 May 2008 〈http://www.crikey.com.au/Business/20071206-NSW-Electricity- privatisation-will-Luddite-economics-rule-in-NSW.html〉 at 8 June 2008.
166. The Federal Minister for Communications launched the 'Do Not Call Register' on 3 May 2007. The Register lists the telephone numbers of people and organisations that telemarketers are not to call.
167. See the Do Not Call Register Act 2006 (Cth) (No 88, 2006) (commenced 30 June 2006).
168. Dovers discussed the significance of human behaviour and conduct when he observed that although we talk of'water management' we are really talking about 'managing people': Steve Dovers, Oral Presentation at Session 3: 'The politics of water services and the culture of supply institutions' ASSA Symposium, Power. People, Water: Urban Water Services and Human Behaviour (Canberra, 20 November 2007).
169. 'Retail headroom' involves making it easier for new retailers to enter the market and win customers by raising the regulated price of water for consumers above that which reflects efficient costs.
170. Karen Bakker, An Uncooperative Commodity: Privatising Water in England and Wales (2004).
171. This scenario also assumes that the public utility staff who were retrenched either took positions outside the industry or lost their skills in some way.
172. See reference to Adelaide's "big pong' under section 'WICA's relationship with other legislation'.
173. This shift has been observable in the banking industry, for example.
174. Sydney Water's draft third party access agreement asserts, in the recitals, its ownership of infrastructure. Draft agreement made available to Janice Gray, 17 September 2007.
175. For example, the Sydney Water Act 1994 (NSW) s 37.
176. Water Industry Competition Act 2006 (NSW) s 64.
177. See Douglas E Fisher, Water Law (2000) 67.
178. Note that statute attempts to modify this position. For example, s 392(1) of the Water Management Act 2006 (NSW) states that.
179. rights to the control, use and flow of: (a) all water in rivers, lakes and aquifers, and (b) all water conserved by any works that are under the control or management of the Minister, and (c) all water occurring naturally on or below the surface of the ground, are the "State's water rights".'; Janice Gray, 'Watered Down? Legal Constructs, Tradeable Entitlements and the Regulation of Water' in Devleena Ghosh, Heather Goodall and Stephanie Hemelryk Donald (eds), rights to the control, use and flow of: (a) all water in rivers, lakes and aquifers, and (b) all water conserved by any works that are under the control or management of the Minister, and (c) all water occurring naturally on or below the surface of the ground, are the "State's water rights".'; Janice Gray, 'Watered Down? Legal Constructs, Tradeable Entitlements and the Regulation of Water' in Devleena Ghosh, Heather Goodall and Stephanie Hemelryk Donald (eds) Water, Sovereignty and Borders in Asia and Oceania, Routledge (forthcoming).
180. For example, Water restrictions on hosing hard services, restricted times of watering using either hand-held hoses or drip irrigation, non-use of sprinkler systems etc: Sydney Water, 'Water Restrictions' (undated) 〈http://www.sydneywater.com.au/SavingWater/WaterRestrictions/〉 at 13 May 2008.
181. If, for example, I collect urine to take to a pathologist for testing, the urine is most likely to be my property.(See R v Welsh {1974} RTR 478). If my hair is cut, the cut hair is my property to sell to a wig-maker.
182. See R v Herbert [1961] JPLGR 12.)
183. Note human bodily waste is literally created by the householder. It is certainly property after it has been treated (as sludge) and it is likely to be property beforehand.
184. See Vernier v State of Maryland 354 A2d 483 (1976) at 498-499 Md Ct of Spec Apps where human waste was found to be property). Although Moore v The Regents of the University of California (1990) 793 P 2d 479.
185. found that human tissue, in the form of a cell line, was not property, the majority reasoning in that case was largely based on the fact that legislation had deliberately taken away property rights from human body parts.
186. See also Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 (31 July 1908) per Griffith CJ for a discussion of property in the human body after death. Note also that even if the human bodily waste component of sewage is not property, property may still exist in the newly created product of sewage. To explain, although air itself might not the subject of property, a sponge cake that is aerated is no less property because it contains air. Property exists in the new form of a cake.
187. For example, Sydney Water Customer Contract- see Sydney Water, 'Operating Licence' / Sydney Water Corporation Operating Licence 2005-2010, Schedule 6 'Customer Contract', 52 et seq avail 〈http://www.sydneywater.com.au/ WhoWeAre/OperatingLicence/CustomcrContract.cfm〉 at 21 December 2008.
188. See also the Sydney Water Act 1994 (NSW).
189. For example, the Sydney Water Act 1994 (NSW).
190. Note although the language of 'control' is used in relation to sewage IPART does not go as far as saying that incumbent water agencies actually have property in the sewage
191. See IPART, Pricing Arrangements for Recycled Water and Sewer Mining, above n 29, 66.
192. See Haynes' Case (1614) 12 Co Rep 113, 77 ER 1389.
193. R v Edwards and Stacey (1877) 13 Cox CC 384 at 385.
194. Tancil v Seaton (1877) 26 AmRep 380 at 382, 28 Graft 601.
195. Vincent v State Bank of NSW Ltd (Unreported. Supreme Court of NSW, 30 July 1993). Accordingly Kevin Gray and Susan Francis Gray, Elements of Land Law (2004) point out that one cannot abandon a chattel on one's own land: at 55.
196. Argued by parity of reasoning with Munday v Australian Capital Territory (Unreported, Supreme Court, ACT, 8 July 1998) per Higgins J.
197. See Gray and Gray, above n 152, 55.
198. See R (Thames Water Utilities) v South East London Division, Bromley Magistrates' Court (Environment Agency as interested party), Court of Justice of the European Communities, Second Chamber, Case C-252/05, 10 May 2007 (Environment Agency as an interested party), heard by the Second Chamber of the Court of Justice of the European Communities, on a reference for a preliminary ruling from the Queen's Bench Division (Administrative Court).
199. In the Australian context see Drake v Minister for Planning [2003] NSWLEC 270 for a discussion of (a) waste as something valuable and (b) 'goods'. Also see Protection of the Environment Operations Act 1997 (NSW). In the New Zealand context see Carter Holt Harvey Ltd v North Shore City Council CA 78/06 [26 September 2007] for a discussion of whether unwanted paper is waste and hence covered by Council by-laws.
200. Jeremy Bentham, Principles of the Civil Code (1802) in The Theoiy of Legislation (C K Ogden (ed) 1931) ch VIII cited in C B Macpherson (ed), Property: Mainstream and Critical Positions (1978) 52.
201. Kevin Gray, 'Property in Thin Air' [1991] Cambridge Law Journal 252. Note in a strata scheme there is property in a horizontal airspace. However, it may be the case that statute classifies sewage as waste, not only setting the methods and standards by which it must be treated but also causing the loss of private property rights in sewage. Much will depend on the specific legislation.
202. Note that technology exists already to treat sewage in small onsite operations which provide recycled water for above ground irrigation purposes. For example, the Kele Effluent and Wastewater Treatment System. See GBG Wastewater Management website 〈http://www.gbgprojects.com/index.php〉 at 8 June 2008.
203. See Office of Fair Trading, Consultation Paper entitled Residential Tenancy Law Reform, A New Direction (20 September 2007) avail 〈http://www.fairtrading.nsw.gov.au/About-us/Reviews-and-reports/ Public-consultation-papers-archive/2007.html〉 at 13 May 2008.
204. See PlAC, above n 109, 16.
205. See ibid.
206. Lee Godden, Oral Presentation at session 4 ' Individual rights to water and the public interest', ASSA Symposium, Power, People, Water: Urban Water Services and Human Behaviour in Australia (Canberra, 20 November 2007).
207. David Hare, The Permanent Way (2003) 18.
208. It is arguable that fragmentation could make integrated management more difficult. For a review of current Australian practice see V Grace Mitchell, Australian Water Conservation and ReUse Research Program: Integrated Urban Water management. A review of current Australian Practice (2004) avail 〈http://www.clw.csiro.au/awcrrp/stagel.html〉 at 23 June 2008.