Water Industry Competition (Access to Infrastructure Services) Regulation 2021

The Regulation operates around several key concepts from the Act. Coverage declaration : A declaration by the Minister that a particular infrastructure service is subject to third party access rights. The Regulation sets out the process IPART follows when a coverage application is made (s 5). Revocation application : An application to remove a coverage declaration. The process mirrors coverage applications, with similar prescribed parties to notify (s 6). Binding non-coverage declaration : A declaration that an infrastructure service is not subject to access rights and that decision is binding for a period. The Regulation prescribes who must be invited to submit when such an application is made (s 7). Access undertaking : A voluntary offer by a service provider to provide access on specified terms. The Regulation requires that certain information about approved access undertakings appear on the register (s 12(4)). Service provider : The entity that owns or operates the infrastructure service. For coverage and revocation applications, the service provider is always a prescribed person to be invited to submit, unless it is the applicant (ss 5(1)(a), 6(1)(a)). Access seeker : A person seeking access to an infrastructure service. The Regulation gives access seekers a right to certain information within 14 days of a request (s 8(2)). IPART’s negotiation protocols : The default rules that govern negotiations. The Regulation mandates their minimum content: good faith obligation, obligation on the service provider to use all reasonable endeavours to accommodate the access seeker, information exchange protocols including derivation of derived elements, confidentiality undertakings, notice to third parties, and pre arbitration dispute resolution procedures (s 8(3)). Parties may agree to use different protocols but must notify IPART in writing (s 8(4)). Arbitration : If negotiation fails, a dispute may be referred to IPART for arbitration. The arbitrator must set a six month target and may make determinations on available information and reasonable assumptions (ss 9, 10). The Regulation also imports the IPART Act regulation modifications to the Commercial Arbitration Act 2010 (s 11). Register of infrastructure services : A public register maintained by IPART containing details of coverage declarations, binding non-coverage declarations, and access undertakings (s 12). The Regulation specifies mandatory information for each, including ACN of service providers and where the undertaking may be inspected.

The primary regulated entities are service providers that own or operate water infrastructure services in NSW which have been covered by a coverage declaration, a binding non-coverage declaration, or an approved access undertaking. These are likely to be incumbent water utilities (such as Sydney Water or Hunter Water) and any private sector operators that have voluntarily submitted access undertakings or been subjected to coverage. Service providers must respond to information requests from access seekers within 14 days (s 8(2)), provide specified information, and negotiate in good faith following IPART’s protocols (or agreed alternatives). They must also ensure their ACN and contact details appear on the register. Access seekers ,typically competing water retailers, developers, or infrastructure investors wanting to use existing pipes, treatment plants, or recycled water systems,benefit from a prescribed information disclosure process. They can request a list of services, negotiation timelines, and copies of protocols, and they have a right to make submissions during application processes. IPART has operational duties: it must notify applicants if an application is incomplete (s 4), invite submissions from a prescribed list of Ministers and the service provider (ss 5 7), set and revise reporting deadlines, maintain the register, and publish negotiation protocols. The Minister administering the Protection of the Environment Operations Act 1997, the Public Health Act 2010, the Water Industry Competition Act 2006 (Parts 2 and 3), and the Water Management Act 2000 are all prescribed persons who must be invited to make submissions on coverage, revocation, and binding non-coverage applications (ss 5(1)(b) (e), 6(1)(c) (f), 7(1)(a) (d)). This effectively gives environmental, health, and water resource regulators a formal say in the access regime, which adds a layer of bureaucratic review. Applicants for coverage, revocation, or binding non coverage must ensure their applications are duly completed; if not, IPART will notify them (s 4). They can be affected by revised reporting timeframes. Parties to arbitration ,the service provider and the access seeker,are affected by the 6 month target and the arbitrator’s power to decide on available information. The public can inspect the register, which includes information about access undertakings and declarations.

Duty of IPART to notify incomplete applications: If an application under ss 24, 28 or 32 of the Act is not duly completed, IPART must notify the applicant (s 4). This creates a right in the applicant to know the deficiency. Duty of IPART to invite submissions: For coverage, revocation, and binding non-coverage applications, IPART must invite submissions from specified Ministers and the service provider (where applicable) and notify them of the application date and the 4 month target for IPART’s report (ss 5(2), 6(2), 7(2)). Duty to revise timeline: If IPART cannot meet the 4 month target, it must notify the applicant and all prescribed persons of the revised date (ss 5(3), 6(3), 7(3)). Right of service provider to be heard: The service provider is always a prescribed person (unless it is the applicant), ensuring it has a chance to make submissions. Duty to provide information: Within 14 days of a request from an access seeker, a service provider must make available: a list of services covered, procedure and negotiation time, a copy of IPART’s negotiation protocols, the information required by those protocols, and other information the provider considers appropriate (s 8(2)). Duty to negotiate in good faith: IPART’s negotiation protocols must include an obligation on each party to negotiate in good faith and on the service provider to use all reasonable endeavours to accommodate the access seeker’s requirements (s 8(3)(a) (b)). Right to agree alternative protocols: Parties may agree to use different negotiation protocols, but must give written notice to IPART (s 8(4)). Duty to exchange information: Protocols must include obligations on the service provider to provide information necessary to understand derivation of derived elements in a proposed access agreement, and on each party to give reasonable confidentiality undertakings (s 8(3)(d)). Rights in arbitration: The arbitrator must notify parties of proposed assumptions and their right to make submissions (s 10(3)). Failure to give that notice does not invalidate the determination (s 10(4)). Duty of arbitrator to set timeline: As soon as practicable after accepting a dispute, IPART must notify parties of the 6 month target (s 9(1)). If the target will be missed, the arbitrator must notify of a revised date (s 9(2)). Power of arbitrator to decide on available information: The arbitrator may determine the dispute on available information and reasonable assumptions about missing information (s 10(1)). In the context of a coverage declaration or access undertaking, the arbitrator may assume the service provider is able to provide the access sought, absent evidence to the contrary (s 10(2)).

The Regulation itself contains no penalty provisions. It does not create offences or set fines. Enforcement of access obligations flows from the underlying Act and other laws. However, non compliance with the Regulation can have significant procedural consequences. A failure by a service provider to provide the information required under s 8(2) within 14 days could be treated by IPART as a failure to negotiate in good faith, which may affect how a subsequent arbitration is conducted. The arbitrator may draw adverse inferences from the lack of information. The Act (s 40(10)) prohibits the arbitrator from making a determination that would put the service provider in breach of other legal obligations, but the Regulation’s information duties are additional obligations. If a service provider refuses to supply information, the arbitrator could, under s 10(1), determine the dispute on available information and assumptions, potentially against the provider’s interests. The arbitration itself is governed by the Commercial Arbitration Act 2010 as modified by IPART Act regulations (s 11). Those modifications likely give IPART’s arbitration awards the force of a court order, making non compliance actionable as a breach of an arbitral award. The saving provision (s 13) ensures continuity but does not create new enforcement mechanisms. For completeness, the Water Industry Competition Act 2006 contains its own penalty provisions for breaches of access obligations, such as failing to comply with an access determination, but those penalties are not set out in this Regulation. Practitioners should consult the Act for pecuniary penalties and the possibility of injunctions. The Regulation’s enforcement leverage is indirect: it structures the process so that non compliance is visible and can be factored into arbitration outcomes. There is no IPART power to fine for missing a 14 day deadline, but a pattern of non compliance could be used as evidence in a dispute. The prescribed submission process (ss 5 7) ensures relevant Ministers are aware of applications and can raise concerns, potentially delaying outcomes.

The Regulation sits under the Water Industry Competition Act 2006 and expressly references that Act throughout. It also cross references several other statutes. The definition of ACN is taken from the Corporations Act 2001 (Cth) (s 3). The Regulation incorporates by reference regulations under the Independent Pricing and Regulatory Tribunal Act 1992 that modify the Commercial Arbitration Act 2010 for IPART arbitrations (s 11). This means the procedural modifications that apply to IPART’s arbitration under the IPART Act also apply to water access disputes under the Water Industry Competition Act, s 40. Practitioners handling arbitrations under this Regulation must be familiar with those modifications, which likely include timelines, confidentiality provisions, and limitations on judicial review. The Regulation prescribes that submissions must be invited from ministers administering the Protection of the Environment Operations Act 1997, the Public Health Act 2010, and the Water Management Act 2000 (ss 5, 6, 7). This embeds environmental, public health, and water resource considerations into the access regime, meaning that access decisions cannot be made in isolation from those regulatory frameworks. The Regulation does not override other legal obligations of the service provider; the Act, s 40(10) already prohibits an arbitrator from making a determination that would put the provider in breach of other legal duties, and the Regulation is consistent with that. The saving provision (s 13) ensures continuity with the repealed 2007 Regulation, so any acts done under that earlier regulation (e.g., existing coverage declarations, register entries) remain valid. The Interpretation Act 1987 is referenced for the completion of forms (s 4 note). There is no express interaction with the Competition and Consumer Act 2010 (Cth) or the National Competition Council, but the access regime is part of the broader NSW water industry competition framework. The Regulation does not address pricing or economic regulation; those are dealt with by IPART under the IPART Act and by licence conditions under the Water Industry Competition Act. Compliance managers should note that the Regulation’s information requirements (s 8) may intersect with privacy laws and confidentiality obligations, but it expressly contemplates confidentiality undertakings (s 8(3)(d)(ii)). The register (s 12) is public, so providers should ensure no confidential information is inadvertently disclosed through the description of services.

Based on the provided text, this Regulation is the Water Industry Competition (Access to Infrastructure Services) Regulation 2021 (NSW). It commenced on 1 September 2021 and was required to be published on the NSW legislation website. It replaced the Water Industry Competition (Access to Infrastructure Services) Regulation 2007, which was repealed on 1 September 2021 by the Subordinate Legislation Act 1989, s 10(2). The text shows no subsequent amendments. The Regulation appears to be a remaking of the 2007 instrument, likely to update references and reflect any changes in the Act. The saving provision (s 13) preserves the effect of acts done under the 2007 Regulation. The note under s 2 indicates this replacement is a routine remaking under the Subordinate Legislation Act. No amendment history is present in the source, so we cannot comment on whether clauses were changed during the remake. However, the substantive content mirrors the 2007 regulation’s structure (notice, submissions, negotiation protocols, arbitration timelines, register). The 2021 version may have updated the list of prescribed Ministers or the content of negotiation protocols, but without the 2007 text for comparison, that is speculative. The Regulation is current as at the date of the provided consolidated version. Practitioners should check the NSW legislation website for any subsequent amendments, as the provided text may not reflect later changes. The consistent approach is that this subordinate legislation is reviewed and remade every few years under the Subordinate Legislation Act.

The source text contains no references to any court cases, tribunal decisions, or litigation. No cases are named or discussed. This is a procedural regulation, and litigation over its provisions is likely to be rare. Disputes under the Act are channelled into arbitration by IPART, not the courts, unless a question of law arises on the validity of an arbitrator’s determination. The Regulation’s provisions on negotiation protocols and arbitration timelines are designed to reduce the need for litigation by providing clear procedural expectations. The arbitrator’s power to decide on available information (s 10(1)) and to assume the service provider can provide access (s 10(2)) may be challenged in judicial review proceedings if a party argues the assumptions were unreasonable. The note under s 10 reminds that the Act s 40(10) prohibits determinations inconsistent with access undertakings or other legal obligations, which could be a basis for challenging an award. The mention that failure to give notice of assumptions does not affect the validity of the determination (s 10(4)) may be tested if a party argues procedural fairness required notice. The regulatory history suggests that the access regime in NSW has produced some arbitrations and at least one merits appeal to the Tribunal, but none are recorded in this Regulation. Compliance professionals should monitor for IPART determinations and any judicial review decisions that interpret the Regulation’s provisions, particularly s 8 (information duties) and s 10 (basis of determination). The saving provision (s 13) may also be relevant if a dispute turns on whether an act done under the 2007 Regulation is still effective.

Several provisions could catch out practitioners and regulated entities.

Application not made until duly completed: Section 4 says if an application is not duly completed, IPART must notify the applicant. The note under s 4 references the Interpretation Act 1987 about completion of forms. The implication is that IPART has no duty to process an incomplete application, and the 4 month reporting clock only starts when the application is duly completed. Practitioners must ensure all required information is supplied; otherwise the timeline is delayed without formal refusal. 14 day information request deadline: Section 8(2) requires a service provider to make information available within 14 days after receiving a request from an access seeker. This is a tight deadline. Failure to meet it could be used as evidence of lack of good faith negotiation, and the 14 day period starts on receipt, not on business days. Service providers should prepare standard information packages in advance. Good faith and reasonable endeavours: IPART’s negotiation protocols must include an obligation to negotiate in good faith and an obligation on the service provider to use all reasonable endeavours to accommodate the access seeker’s requirements (s 8(3)(a) (b)). “All reasonable endeavours” is a high standard, potentially greater than “best endeavours” in some interpretations. Service providers cannot simply refuse on cost grounds; they must actively seek to meet the seeker’s requirements. Ability to agree different protocols but must notify: Parties can agree to use other negotiation protocols, but they must give written notice to IPART (s 8(4)). Failure to notify may mean IPART assumes its default protocols apply, which could affect a later arbitration. Arbitrator can assume the service provider can provide access: Section 10(2) allows the arbitrator, in disputes about a service subject to a coverage declaration or access undertaking, to assume the service provider is able to provide the access sought, in the absence of evidence to the contrary. This shifts the evidentiary burden onto the service provider to prove incapacity. If the provider does not bring evidence of technical or capacity limitations, the arbitrator can proceed on the assumption that access is feasible. Determination on available information: Section 10(1) allows the arbitrator to make a determination on the basis of available information and reasonable assumptions about missing information. This means a party that withholds information does not necessarily block a determination; the arbitrator can fill gaps with assumptions. Failure to give notice does not invalidate determination: Section 10(4) provides that failure to give written notice of proposed assumptions and the right to make submissions does not affect the validity of the arbitrator’s determination. This may limit challenges based on procedural unfairness. Register information must include ACN: Sections 12(2)(b), 12(3)(b), and 12(4)(b) require the service provider’s ACN to be included. If the provider does not have an ACN (e.g., a government entity), this may cause confusion, but the Act probably covers that. The saving provision: Section 13 preserves acts done under the 2007 Regulation. But it does not preserve the old regulation’s provisions. If a party was relying on a procedural step under the old regulation, it continues to have effect, but the new regulation applies to future steps.

For service providers subject to a coverage declaration or access undertaking, compliance begins with preparation. Maintain an information package that includes a list of services described in the declaration or undertaking, the procedure for obtaining access and likely negotiation timeframes, a copy of IPART’s negotiation protocols (or your agreed protocols if different), and the information required by those protocols (s 8(2)). Ensure that within 14 days of receiving a request from an access seeker, you provide this package. Designate a compliance officer to handle these requests. If you intend to negotiate using protocols other than IPART’s default, agree with the access seeker in writing and notify IPART of that agreement (s 8(4)). During negotiations, act in good faith and use all reasonable endeavours to accommodate the access seeker’s requirements (s 8(3)(a) (b)). If you are an access seeker, you have the right to request the information under s 8(2). Send a written request and keep a record of the date. If the service provider fails to comply within 14 days, you may refer to that failure in any subsequent arbitration as evidence of lack of good faith. For IPART practitioners, ensure that when a coverage, revocation, or binding non-coverage application is received, you check it is duly completed. If not, notify the applicant under s 4. If it is complete, invite submissions from all prescribed persons under ss 5, 6 or 7, and notify them of the application date and the 4 month target. Monitor the timeline; if a report cannot be delivered by the target, notify the applicant and all prescribed persons of the revised date (ss 5(3), 6(3), 7(3)). For arbitration, accept the application, set the 6 month target, and notify parties and the Minister (s 9(1)). If the target will be missed, notify the revised date (s 9(2)). The arbitrator should consider whether to decide on available information under s 10(1) and whether to assume the service provider can provide access under s 10(2). Before making assumptions, give written notice to parties of the proposed assumptions and their right to make submissions (s 10(3)), but note that failure to do so does not invalidate the determination (s 10(4)). Maintain the register of infrastructure services under s 12, ensuring that for each coverage declaration you include a description, service provider name and ACN, contact details, dates of declaration and renewal, period and expiry date. For binding non-coverage declarations, include description, provider details, period and expiry. For access undertakings, include description, provider details, approval date, period and expiry, and a statement on where the undertaking can be inspected, including a link if appropriate. Review the register entries periodically for accuracy. If you are an applicant for a coverage, revocation, or binding non-coverage declaration, ensure your application is complete under the Act and any requirements from IPART to avoid notification under s 4.