The risky business of urban water innovation in Australia: looking through the harm lens

Abstract

New urban water practices promise greater resilience, liveability and sustainability. Water reformers suggest new practices which are decentred compared to old, centralised water arrangements and systems. Fundamentally, changing the way water is delivered in cities may bring new risks, or at least new allocations of existing risks. This article examines the legal consequences of reforms where water is supplied through legally decentred entities, including private or community-owned entities. It recognises that the traditional analytical lens on urban water risks usually adopts the philosophy of risk avoidance or minimisation, as opposed to a less common approach adopted here which views risk as harm. It traces the legal consequences of what happens if harm occurs alongside innovation: that is, what happens if a risk manifests and causes harm to the end user? Four separate incidents of harm are analysed in hypothetical, yet realistic, decentred scenarios – water contamination, flooding, sewage nuisance, and an interrupted water supply – in terms of the legal consequences of the harm and the difficulties for people who are harmed in pursuing adequate redress. The analysis confirms that changing the legal ownership of water suppliers has important legal and practical implications. Thus, governments considering water reforms involving decentred arrangements need to move carefully and explicitly consider if new regulatory regimes and recovery mechanisms are needed – or, indeed, whether new arrangements are justified at all.