Edited version of your written advice

Authorisation Number: 1012756159914

Ruling

Subject: Fuel tax credits in respect to public roads

Question

Are roads (other than 'forestry roads') located on the Land considered to be 'public roads' for the purposes of section 41-20 of the Fuel Tax Act 2006 (FT Act)?

Answer

No.

This ruling applies for the following periods:

1 April 2010 to 30 June 2018.

The scheme commences on:

1 April 2010.

Relevant facts and circumstances

You are currently registered for Goods and Services Tax (GST) and Fuel Tax Credits (FTC).

You query whether certain roads are public roads for the purposes of section 41-20 of the FT Act.

You advise that the roads have not been declared or dedicated as public roads under any Commonwealth or State/Territory statute. Further, there is no intention to dedicate these roads as public roads. No statute or act of parliament has been identified under which the roads have been declared or dedicated as public roads.

Relevant legislative provisions

Fuel Tax Act 2006 section 41-20.

Fuel Tax Act 2006 subsection 43-10(3)

Fuel Tax Act 2006 subsection 43-10(4).

Reasons for decision

Section 41-20 of the FT Act provides that you are not entitled to a fuel tax credit for taxable fuel to the extent that you acquire, manufacture or import the fuel for use in a vehicle with a gross vehicle mass of 4.5 tonnes or less travelling on a public road.

This ruling considers whether roads, other than forestry roads (ie roads on privately held land and 'primary' and 'commonly used' roads), are public roads for the purposes of the FT Act.

'Public road' is not a defined term in the FT Act. However, Fuel Tax Ruling FTR 2008/1 Fuel tax: vehicle's travel on a public road that is incidental to the vehicle's main use and the road user charge, provides guidance in respect of the meaning of roads and public roads for the purposes of subsections 43-10(3) and 43-10(4) of the FT Act. Whilst these provisions deal with the application of the road user charge to a fuel tax credit for fuel used in a heavy vehicle, for travelling, on a public road, the principles for determining if a road is a public road are applied where the phrase 'public road' is used throughout the FT Act.

Paragraph 44 of FTR 2008/1, explains that a road is a public road if:

• it is opened, declared or dedicated as a public road under a statute;

• it is vested in a government authority having statutory responsibility for the control and management of public road infrastructure; or

• it is dedicated as a public road at common law.

Consideration is given to the criteria in respect of the roads that are the subject of this ruling:

Opened, declared or dedicated as a public road under statute

You advised that the roads within the Land have not been declared or dedicated as public roads under any Commonwealth or State/Territory statute. Further, there has been no intention to dedicate these roads as public roads.

There is no evidence that any of the roads have been declared or dedicated as public roads under any Commonwealth or Territory statute.

Vested in a government authority having statutory authority for public roads for the control and management of public road infrastructure

'Primary' and 'commonly used' roads

Paragraphs 123 and 124 of FTR 2008/1 explain that roads which are constructed, managed or maintained by a statutory authority of a state or territory that has responsibility over roads for public use, are public roads. A local council is responsible for maintaining and constructing the primary and commonly used roads on the Land. However, the roads are not maintained and provided for general public usage.

In summary, the roads are not vested in the council and are not constructed or maintained by a local government authority for general public usage.

Dedicated as a public road at common law

At paragraph 125 of FTR 2008/1 the Commissioner explains that there must be established an 'unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road' for a road to be dedicated as a public road at common law.

Paragraph 125A of FTR 2008/1 lists the factors to be considered in determining whether an owner of land has dedicated it as a public road under the common law, and include:

• whether there has been a declaration of an intention to dedicate;

• delineation on maps or plans of roads set apart for public use;

• use by the public (indicating acceptance of the dedication);

• whether vehicles must be registered to use the road and state or territory traffic laws are applicable while the vehicles use the road; and

• the expenditure of money by public bodies in forming or maintaining the land as a road.

We will address these factors as follows:

Declaration of an intention to dedicate

All of the information provided indicates that there has not been any declaration or an intention to dedicate any roads as public roads.

Delineation on maps or plans of roads set apart for public use

According to your ruling submission, the roads in question are not shown on any maps with any degree of precision. Their inclusion on any map is more for general guidance/information rather than any intention/expectation that they will he used as a navigation aid to travel around the Land. The roads have not been given official names, nor have they been delineated on any maps or plans of roads set apart for public use.

Use by the public

The general public do not have a public right of way over any of the roads on the Land.

Vehicle registration

The vehicles travelling on Land are registered under the vehicle registration requirements set out under the relevant legislation.  You advised that whilst these vehicles are not required to be registered, they are registered for commercial and practical customary practice in identifying, managing and monitoring the use of the vehicle fleet. For these practical (rather than legislative) reasons, these vehicles are voluntarily registered.

Expenditure of money by public bodies in forming or maintaining the land

The council is responsible for managing, maintaining and constructing roads on the Land (whether or not the roads are on land vested in fee simple to the owner or on 'non vested' land), however it does not have any ownership or authority over the roads it constructs and maintains. Any road construction and maintenance can only be carried out with the consent and at the direction of the owner.

We have weighed up all factors and on balance we consider that in respect of the roads in question, there is no evidence of an 'unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road'. Consequently, these roads do not satisfy the requirement to be a dedicated public road at common law.

On the basis the roads on Land have not been:

• opened, declared or dedicated as public roads under a statute;

• vested in a government authority that has responsibility for the control and management of public road infrastructure

• dedicated as a public road under common law,

As such the roads on privately held land and the 'primary' and 'commonly used' roads are not 'public roads' for the purposes of the FT Act.

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