A unique matter before the Australian Competition Tribunal saw Gilbert + Tobin act for Services Sydney (also known as Water Works) in its successful attempt to gain access to metropolitan waste water pipelines.
Competition and regulation partners Simon Snow and Luke Woodward said it was the first Australian water industry case — and probably the first time anywhere in the world — in which a company had sought and obtained rights to access “a sewerage facility to compete with the incumbent operator”.
“A key part of Services Sydney’s proposal is to be able to offer to the community in Sydney a greener treatment of their sewerage,” Woodward said. “They would be able to compete by providing a service where they don’t just take the sewage and pump it out to sea.”
Rather, it intends to treat the sewage to the level that it could be used as bulk water for industrial uses and environmental flows. If community acceptance increased to the point that the sewage could be treated to potable water standard, Services Sydney would have the capability to do so.
“Really, the water sector is the last bastion of government infrastructure to face the prospect of competition,” Woodward said. “This case really throws that open.”
The challenge of the matter was being able to convey to the Tribunal “that this was a sensible and serious proposal” and that the concept of competition in sewerage services should be entertained” despite the fact that it had not occurred anywhere else in the world.
Adding to the challenge was the release of a report recommending that the NSW government introduce a state-based access regime, one working day before the hearing. “That resulted in [Sydney Water] changing a lot of legal arguments on which it was resisting the declaration of those services,” Snow said. This required “very fast footwork” from both legal teams.
Clayton Utz acted for Sydney Water Corporation Limited, the Australian Government Solicitor acted for the National Competition Council, which appeared to assist the Tribunal, and the Crown Solicitor acted for the NSW Government, which sought leave to intervene in the proceedings but was refused.