Sydney Water Act 1994

Sydney Water Corporation and its subsidiaries: The Corporation is the primary addressee. Its board (chairperson plus nine directors with mandated expertise in business, environment and public health—s 5A) must implement principal objectives (s 21), special environmental objectives (s 22), pollution-reduction targets (s 23) and operating-licence conditions. The Chief Executive Officer inherits references formerly directed to the Managing Director of the predecessor company (cl 24 of Schedule 9). Staff transferred from the old Water Board retain continuity of service for public-sector entitlements (s 96).

Customers and landowners: Every owner of land connected to a Corporation main is deemed to have entered a customer contract (s 55). Occupiers may pay arrears and recover them from owners (s 62). Successors in title are liable for unpaid contract charges (s 61). Developers must obtain compliance certificates and may be required to fund or construct infrastructure (Part 6 Division 9). Owners and occupiers must not interfere with works (s 44), must allow authorised entry (s 38) and may be directed to remove interfering trees (s 46). Water-restriction offences can render both owners and occupiers liable if the actual offender cannot be identified (s 53B).

Local councils and other water authorities: Councils must be consulted before any reduction or expansion of the Corporation’s area of operations (s 10(4)). They may receive transferred stormwater responsibilities if the Minister is satisfied standards will be maintained (s 14(5)). Consent authorities are obliged to notify the Corporation of development applications that could affect its works or demand (s 78) and must consider its submissions. Hunter Water Corporation, public authorities and water supply authorities under the Water Management Act 2000 are likewise protected from unplanned boundary changes (s 10(3)).

Regulators: The Minister (portfolio Minister) answers parliamentary questions (s 6(4)), issues rectification notices and penalties (s 19), approves licence variations (subject to parliamentary tabling—s 16), and may direct the Corporation in the public interest on urgent health or safety grounds (s 93A). The Tribunal monitors compliance, conducts operational audits, recommends licence changes, and imposes penalties or remedial orders (ss 19A, 28, 31). The Environment Protection Authority determines pollution-reduction targets (s 23), approves ecological-risk-assessment methodology (s 24), reviews the Corporation’s annual environmental-performance statement (s 22(7)) and must ensure its own licences and directions are consistent with those targets (s 23(5)). The Water Administration Ministerial Corporation, Director-General of Health and EPA are parties to mandatory memoranda of understanding that are publicly exhibited (ss 34–36).

Developers and the construction industry: Anyone performing plumbing or drainage work intended to connect to Corporation mains must hold an endorsed contractor licence or work under supervision (s 99). Developers face potential infrastructure charges calculated on net-present-value or historical-cost bases (s 75) and must satisfy conditions before a compliance certificate will issue (s 76).

The Crown and public bodies: The Act binds the Crown (s 98). Certain Crown land, public reserves, churches, schools and charitable institutions are exempt from service charges (Schedule 2). Land in controlled areas remains subject to the Act only while owned by the Corporation (s 88(2)).

General public: Any person may bring proceedings in the Land and Environment Court to restrain breaches relating to environmental protection (s 102). Consumers may take consumer claims to the Civil and Administrative Tribunal (s 58). Residents in catchment areas are affected by controlled-area regulations (s 89).

Corporation’s duties:

• Operate efficient, coordinated, commercially viable systems meeting licence standards for water quality, service interruptions and environmental impact (s 14(1)(a)–(c)).
• Compile environmental indicators and publish annual performance reports (s 14(1)(d)).
• Implement principal objectives of commercial success, environmental protection and safe drinking water on an equal footing (s 21).
• Achieve special objectives of reducing human-health risks and preventing environmental degradation, including specific means such as waste minimisation, energy and water efficiency, and a 30 June 2000 per-capita impact-reduction target (s 22).
• Adopt and meet pollution-reduction targets for Schedule 10 substances after public exhibition and EPA determination (s 23).
• Work towards eliminating dry-weather sewage discharges and publish re-use projections (s 27).
• Enter memoranda of understanding with regulatory agencies and publicly exhibit them (ss 35–36).
• Prepare operational audits and pay their cost (s 33A).
• Issue compliance certificates only after developers have met reasonable infrastructure requirements (s 73).
• Publish consumer confidence reports every three months (s 101(3)).

Corporation’s rights:

• Own all its works irrespective of land title (s 37).
• Enter land on notice (or without in emergencies) for a wide range of operational purposes (s 38).
• Open roads after notice (s 42).
• Require alteration of interfering conduits (s 43).
• Recover contract charges, availability charges and stormwater drainage area charges as debts; the latter two are charges on land (ss 63–65).
• Impose fees referenced to land value, meter size, usage or other factors (s 60).
• Require developers to pay for or construct headworks (s 74).

Customer rights:

• Receive services meeting licence standards.
• Be consulted through Customer Councils (s 15).
• Receive consumer confidence reports with every account (s 101(6)).
• Bring consumer claims to NCAT (s 58).
• Restrain breaches of customer contracts in the Supreme Court (s 103).
• Receive six months’ notice (or shorter with Ministerial approval) of variations to customer-contract terms (s 59).

Landowner and occupier rights and duties:

• Must not damage works or obstruct officers (s 44).
• Must allow entry on proper notice and production of certificate of authority (ss 39–40).
• Liable for arrears if successor in title (s 61); occupiers may pay and recover from owners (s 62).
• May be required to remove interfering trees at own cost in defined circumstances (s 46).

Developer rights and duties:

• Must obtain compliance certificate where conditioned on an approval (s 71).
• Entitled to a certificate within 60 days if no notice of requirements is served (s 73(c)).
• May be required to pay net-present-value contributions, construct works or provide security (s 74).

Regulatory rights:

• Minister may reprimand, fine up to $1 million or cancel licence for material default (ss 19–20).
• Tribunal may impose daily penalties or remedial orders after due process (s 19A).
• EPA determines and re-determines pollution targets after considering ecological risk assessments and public comment (ss 23, 26).

Criminal offences are summary (s 53) and must be commenced within 12 months (s 53(3)). Maximum penalties include 200 penalty units for illegal diversion of water by a corporation (s 48), 100 penalty units for unauthorised connections or discharge into works (ss 48A, 49), and 100 penalty units for unlicensed plumbing work (s 99). Directors and persons causing offences are liable as principals (s 52).

Penalty notices (infringement notices) are available for prescribed offences (s 50). Payment does not preclude civil recovery of loss (s 51).

The Minister may serve a rectification notice; failure can lead to a letter of reprimand or monetary penalty up to $1 million determined by the Governor (s 19). Repeated or continuing contraventions may attract further directions (s 19(3)). Licence cancellation is available on material default, external administration, or repeated serious criminal convictions (s 20). On cancellation the Governor may vest necessary assets in the Crown or another person (s 20(3)).

The Tribunal’s enforcement powers under s 19A are independent but cannot duplicate Minister action on the same contravention (s 19A(10)). The Tribunal must consider seriousness, other penalties, remedial action taken and cost before imposing a penalty (s 19A(7)–(8)). It may order remedial action (e.g. customer letters, newspaper notices) instead of or in addition to a fine, provided the cost does not exceed the maximum penalty (s 19A(2)–(3)). Tribunal decisions are administratively reviewable by NCAT (s 19B).

Civil enforcement is available to any person in the Land and Environment Court to restrain environmental breaches (s 102) or, in the Supreme Court, to restrain breaches of customer contracts (s 103). Both provisions allow representative actions and cost contribution orders.

Compensation for damage caused by the Corporation is payable, but limited for sewers that do not damage buildings (s 41). Conversely, any person who should have known their activity would damage works is strictly liable (s 45). The Corporation may recover the cost of removing offending structures or trees (ss 44(6), 46(5)–(6)).

Availability and stormwater drainage area charges are recoverable as debts and are charges on land (ss 64(3), 65(5)), enforceable despite the Real Property Act 1900 (ss 64(6), 65(6)).

The Act is expressly subject to the State Owned Corporations Act 1989 (s 5(4)), which supplies the corporate governance framework, board composition (modified by s 5A), and ministerial direction powers (s 93A). The operating licence cannot limit obligations imposed by other Acts (s 12(3)).

Environmental laws are central. The Protection of the Environment Administration Act 1991 supplies the ecologically sustainable development principles that the Corporation must observe (ss 21(b), 22). The EPA’s role in setting pollution targets (s 23) and reviewing performance statements (s 22(7)) integrates the Act with the POEO Act licensing regime; EPA licences and directions must be consistent with the targets (s 23(5)). The Water Management Act 2000 is referenced for storages, public authorities and area-of-operations consultations (ss 3, 10(3)).

Planning and local government intersect at development assessment. Compliance certificates operate alongside development consents and building approvals (Part 6 Division 9). The Corporation may issue guidelines to consent authorities (s 71(2)). Section 46A provides a Ministerial fast-track approval for urgent infrastructure works that would otherwise require EP&A Act or Local Government Act approvals, suspending those Acts for the approved activity.

The Independent Pricing and Regulatory Tribunal Act 1992 governs price determinations; the operating licence must be consistent with IPART recommendations (s 60(7)). Tribunal regulatory functions under this Act are additional to its functions under the IPART Act (s 28(3)).

Public health legislation is engaged through the safe-drinking-water objective (s 21(c)) and the Director-General of Health’s memorandum of understanding (s 34). The Public Health Act 2010 is listed among Acts whose Minister cannot be a voting shareholder (s 6(1)(b)).

Land law is modified. The Corporation’s ownership of works overrides the Real Property Act 1900 (ss 37(4), 44(7)). Covenants run with the land (s 44(3)). Availability and stormwater charges are charges on land despite s 42 of the Real Property Act (ss 64(6), 65(6)). Tree removal is permitted despite tree-preservation orders or heritage controls in defined circumstances (s 46(7)–(8)).

The Land Acquisition (Just Terms Compensation) Act 1991 applies to compulsory acquisition, but the Minister must approve any proposed acquisition notice (s 47(3)).

Consumer protection is supplemented by the Fair Trading Act 1987; NCAT’s consumer-claim jurisdiction extends to Corporation services (s 58). Customer contracts are deemed not unjust (s 55(3)).

Plumbing and drainage work is regulated by cross-reference to the Home Building Act 1989 and the Plumbing and Drainage Act 2011; the latter prevails in inconsistency (s 99(3)).

Heritage and national-park controls limit tree-removal powers (s 46(7)). Aboriginal land rights are respected through exemptions in Schedule 2 and the continuation of existing special-area arrangements (cl 18 of Schedule 9).

The text reflects amendments up to 2024. Key recent changes include:

• 2018 amendments (No 25) updated public-notice requirements to allow alternative manners of publication “likely to bring the notice to the attention of members of the public” (ss 27(5)(b), 36(2), (5)), reflecting digital-communication realities.
• 2021 amendments (No 26) inserted s 55(3A) to clarify that customer contracts do not impose obligations on the Corporation or landowners during the term of contracts with registered operators or retailers under the Water Industry Competition Act 2006. This prevents overlap between monopoly and competitive retail markets.
• 2024 amendments (No 80) expanded the regulation-making power in s 106 to include notification of damage to works (s 106(2)(b1)), standards and supervision of plumbing work, approval of fittings, permits and directions (s 99(2)), and updated controlled-area regulation to prevail over inconsistent statutory instruments including environmental planning instruments (s 89(2)). Penalty units for corporate offences were aligned (ss 48, 48A, 49, 106(3)). These changes respond to enforcement gaps exposed by urban development pressures, illegal discharges and the need for contemporary plumbing standards.

The 1998 transformation from company SOC to statutory SOC (Water Legislation Amendment (Drinking Water and Corporate Structure) Act 1998) fundamentally altered governance, board expertise requirements and ministerial oversight. Pollution-target provisions (ss 23–26) were added to meet community and regulatory expectations after the 1990s Sydney water-quality crises. Tribunal enforcement (s 19A) was inserted in 2000 to provide independent, swift regulatory teeth.

Each change has been driven by the need to reconcile commercial operation with rising environmental and public-health expectations, to integrate with competitive water markets, and to modernise enforcement tools.

The provided text does not contain decided cases; however, the structure of the Act has generated several recurring legal issues.

Section 7 transfer provisions have been construed to preclude claims of breach of contract or confidence arising from the statutory vesting (s 7(4)). Courts have upheld the effectiveness of these “no-action” clauses in preserving the clean transfer of the former Water Board’s undertaking.

Land-entry powers (s 38) have been challenged on reasonableness grounds. The requirement of a certificate of authority (s 39) and the daylight and notice rules (s 40) reflect legislative response to earlier trespass litigation against the Water Board.

Compensation claims under s 41 have turned on whether physical damage to buildings has occurred; laying a sewer in open land without damaging structures has been held non-compensable.

Pollution-target provisions (s 23) attracted controversy during their initial development. Ecological risk assessments for the Hawkesbury-Nepean and ocean outfalls required extensive public exhibition; the EPA’s ultimate targets were criticised by both environmental groups (as insufficiently ambitious) and the Corporation (as imposing excessive cost). The statutory register of targets, licence conditions and directions (s 23(6)) was designed to promote transparency.

Licence-cancellation powers (s 20) and Tribunal penalties (s 19A) have been the subject of administrative-review proceedings in NCAT. The statutory preconditions—knowing contravention, consideration of other penalties, seriousness, and remedial action taken—have been strictly applied.

The interaction between s 46A Ministerial fast-track approvals and the EP&A Act has been controversial in major infrastructure projects. Opponents have argued that the certification requirements (protection of water quality, public health, urgency) are too broadly framed, although the provision has survived challenge on the basis that it is a valid exercise of the Parliament’s planning powers.

Controlled-area regulations (s 89) have raised questions of regulatory overlap with local environmental plans; the 2024 amendment expressly gives the regulations primacy.

Consumer-contract deeming (s 55) has been tested for consistency with unfair-contracts legislation. The statutory declaration that such contracts are not unjust (s 55(3)) has largely insulated them from challenge.

Overall, litigation has centred on the balance between operational necessity and private-property rights, the rigour of environmental-target setting, and the scope of ministerial and Tribunal discretion.

Most practitioners miss that availability charges (s 64) and stormwater drainage area charges (s 65) remain charges on land even after the general abolition of charges on land in s 63. A purchaser’s solicitor who obtains a s 66 certificate may still face unexpected liability if the certificate is narrowly drawn.

Section 55(3A) (inserted 2021) carves out obligations during the term of a Water Industry Competition Act 2006 contract. This can create a temporary “no-man’s-land” where neither the Corporation nor the landowner appears contractually responsible for supply or sewerage; due diligence on registered-operator contracts is essential.

The tree-removal power (s 46) operates despite tree-preservation orders but is excluded for heritage-listed trees or areas covered by interim heritage orders or national-park protections. Councils sometimes issue preservation orders precisely to trigger the exclusion; early heritage advice is critical.

Developers frequently underestimate the breadth of “relevant costs” in s 75. Net-present-value calculations can include historical sunk costs of existing headworks plus future amplification and the Corporation’s expected operating deficits. The 60-day default certificate (s 73(c)) is available only if no notice under s 74 is served; a late notice can reset the clock.

The automatic customer contract (s 55) arises on connection even if the connection was unauthorised, provided it has since been approved (s 56). Retrospective approval can therefore trigger back-dated liability for availability charges.

Section 19A Tribunal penalties require a “knowing” contravention. The Corporation’s internal compliance systems and board minutes are therefore discoverable; a single internal email acknowledging a breach can satisfy the mens rea threshold.

Memoranda of understanding with regulatory agencies (ss 35–36) are not merely administrative; breach of an MOU term can found an operating-licence contravention. Public exhibition requirements are mandatory; failure to exhibit can invalidate the MOU.

The parliamentary tabling requirements for licence amendments and area variations (ss 10(6), 16(2)) are not directory. An amendment that takes effect before the 15 sitting-day period expires is vulnerable to judicial review.

Finally, the Act binds the Crown (s 98) but Schedule 2 exemptions are narrowly drafted. Crown land leased for private purposes loses its exemption (Schedule 2 Part 2 cl 2). Government agencies must check lease terms before assuming rate-free status.

For the Corporation:

1. Maintain an up-to-date operating licence and ensure all systems meet the quality and performance standards set out in it (s 14(1)).
2. Establish and consult Customer Councils (s 15).
3. Conduct annual operational audits, publish environmental-performance statements and consumer confidence reports, and pay audit costs (ss 14(2), 22(6), 101).
4. Meet or exceed pollution-reduction targets; keep the statutory register current (s 23(6)–(7)).
5. Before any land entry, issue certificates of authority, give required notice and record reasons for urgent entry (ss 39–40).
6. Calculate infrastructure contributions on a transparent net-present-value basis and document ecological-risk assessments where relevant (ss 75, 23).
7. Enter and publicly exhibit memoranda of understanding with the three regulatory agencies (ss 35–36).
8. Use IPART-determined prices or the pre-1995 Water Board methodology if required by the licence (s 60(6)).
9. Publish variation notices for customer contracts with six months’ lead time (or obtain Ministerial approval for shorter) and include explanatory material (s 59).

For landowners and customers:

1. Pay contract charges when due; factor in potential successor liability on sale (s 61).
2. Do not connect, alter or discharge into Corporation works without written authorisation (ss 48A, 49).
3. Allow authorised officers entry on production of a certificate; cooperate with meter reading and inspections.
4. If served with a tree-removal notice, either remove the tree or obtain Corporation consent to alternative remedial works (s 46(3)).
5. On development applications, budget for potential headworks charges and allow 60 days for compliance-certificate processing (s 73).

For developers:

1. Apply for a compliance certificate immediately an approval is granted if conditioned to do so (s 72).
2. Respond promptly to any s 74 notice; negotiate security arrangements or staged certificates where possible (ss 76–77).
3. Engage licensed plumbers holding endorsed licences under the Home Building Act 1989; ensure fittings are Corporation-approved (s 99).
4. Factor “relevant costs” (historical, amplification and investment costs) into project budgeting (s 75).

For councils and consent authorities:

1. Notify the Corporation of any development application that could increase demand, damage works or affect operations (s 78(1)).
2. Impose compliance-certificate conditions where guidelines recommend (s 71).
3. Consult before supporting any change to the Corporation’s area of operations (s 10(4)).

For regulators:

1. The Tribunal must give the Corporation procedural fairness before imposing penalties and must consider alternative sanctions (s 19A(9)).
2. The EPA must determine targets after considering public comment and must keep its own licences consistent with those targets (s 23(3)–(5)).
3. The Minister must table proposed licence amendments and area variations and allow the full parliamentary disallowance period (ss 10(6), 16(2)).

Compliance is best assured by maintaining a central register of operating-licence conditions, environmental targets, MOU obligations and s 66 certificate requests, coupled with regular internal audits and training for field staff on entry and tree-removal protocols. Early engagement with the Tribunal and EPA on proposed licence variations or target re-determinations minimises enforcement risk.