Urban water rights exist...for some

In its March 2008 publication Towards Urban Water Reform , the Australian Productivity Commission reported that urban water users do not own property rights to water (p.61).

The Commission's assertion was not correct in relation to water collected from roofs for rainwater tanks.

All water users in New South Wales, Victoria, Queensland and the Northern Territory own property rights to water collected from roofs for rainwater tanks, as confirmed by the respective governments (Attachments 1-16)

Australia's other governments, including the commonwealth, consider that the water that falls on a person's roof is not the property of that person (Attachments 17-28)

A market for trading mains drinking water supply could be established if property owners were permitted to trade the amount of mains water they save in a given year by substituting their own rainwater.

In Australia, sovereign risk is an impediment to rainwater tanks becoming a significant additional source of urban drinking water supply.

Sovereign risk occurs in the form of governments taxing the use of rainwater or imposing entitlement regimes.

For example, the National Water Commission claims that governments can establish entitlement regimes for the use of rainwater (Attachment 17). The commonwealth government makes the same claim (Attachments 18, 19).

Confirmation by the governments of NSW, Victoria, Queensland and the Northern Territory that rights to water collected from roofs for rainwater tanks are vested in the property owner, removes sovereign risk in those markets.

However, a threat remains in the other states and the ACT.

Sovereign risk is enshrined in Australia's National Water Initiative Agreement (2004).

Clause 2 says, ''In Australia, water is vested in governments...''.

Clause 2 does not apply to rain that falls on roofs in NSW, Victoria, Queensland and the Northern Territory, representing more than 72% of Australians.

Clause 2 is incorrect and requires amending.

Rainwater tanks are a cost effective source of urban drinking water supply, provided economies of scale in manufacturing, installation, consumer financing, marketing

and sales are achieved.

Government subsidies for installation and plumbing of rainwater tanks are not required, and have never been required, and fortunately, most government programs are now terminated.

It is now possible to conduct mass marketing of rainwater supply in NSW, Victoria, Queensland and the Northern Territory, without undue market interference by government.

NSW, Victoria, Queensland and Northern Territory Governments' Policy

In these states and territory, water that falls on a person's roof is the property of that person. See –

NSW – Attachments 1-5

Victoria – Attachments 6-8

Queensland – Attachments 9-15

Northern Territory – Attachment 16

Commonwealth Government Policy

Commonwealth government policy is that all water in Australia, including rainwater, is vested in state and territory governments; the commonwealth considers that state and territory governments have the right to licence, regulate and tax the use of rainwater (Attachments 17-21).

Government policy is based on the assumption that water from a roof falls on land (Attachment 19). This assumption is incorrect: water collected from roofs for rainwater tanks does not fall on land.

South Australian Government Policy

The state government says it has the right to tax the use of water collected from roofs for rainwater tanks, and already imposes a tax on certain non-residential use (Attachment 22).

Before water can be taxed it must be ''taken''.

Water is ''taken'' when it is legally captured from its natural source and taken under a person's control.

Government policy is that ''taken'' water is owned by the person who takes it (Attachment 23).

The policy is contained in the government publication, ''Who Owns Water?'', which says, ''Once water has been legally captured from its natural source and taken under a person's control, that person could then be said to own that particular water'' (Attachment 24).

According to the government, water on a person's roof is surface water.

Surface water is ''non-taken'' water.

However, it is impossible for water on a roof to be ''non-taken'' when water in a rainwater tank is ''taken''.

The legal meaning of surface water is water flowing over land after having fallen as rain.

It is impossible for the meaning of surface water to include water collected from roofs for rainwater tanks.

To clarify the government's position, the government has been asked this question: Is water legally captured from its natural source and taken under a person's control when it falls as rain on that person's roof?

The answer ''no'' will mean that a person does not capture rain and take it under their control by means of their roof.

The answer ''yes'' will mean that the government does not have the legal right to tax the use of water collected from roofs for rainwater tanks.

Tasmanian Government Policy

Government policy is that rain on a building is dispersed surface water because the rain would have fallen on land were the building not there; however, the government is unsure whether a person's roof is a device for taking rain (Attachment 25).

The matter is resolved by reference to state building regulations, which set out the manner by which rain must be captured and taken under a person's control when it falls on that person's roof.

Australian Capital Territory Government Policy

Government policy is that a roof is not a device for taking rain; and that water in a rainwater tank is non-taken water (Attachment 26). Under the Water Resources Act 2007, the meaning of surface water includes water flowing over land after having fallen as rain ''that has been collected in a dam, reservoir or rainwater tank''.

However, it is impossible to collect water from a roof for a rainwater tank unless a roof is a device used for taking rain. Therefore, it is impossible for water collected from roofs for rainwater tanks to be included in the meaning of surface water.

Perversely, the government acknowledges the use of roof tops ''as a means to capture rainwater and store this water in rainwater tanks'' (Attachment 27).

Western Australian Government Policy

Government policy is that under common law, water belongs to the person who lawfully captures it; however, the government is unsure whether a person captures rain with their roof (Attachment 28).