Edited version of your private ruling

Authorisation Number: 1012597861366

Ruling

Subject: Forestry roads - public or private

Question 1

Are roads located within the forestry plantation areas on the Land considered to be 'forestry roads' for the purposes of section 43-75 of the FT Act and therefore not public roads under section 41-20 of the Fuel Tax Act 2006 (FT Act)?

Answer

Yes

Question 2

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

Answer

No

Relevant facts

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.

You also query whether roads that have been constructed and maintained within the plantation areas on the Land are forestry roads. Such roads are the primary means to provide access to the forestry areas within the Land to enable the following activities to be carried out.

• Planting - ploughing, breaking or turning of the soil, the fertilisation or conditioning of the soil and the placing of the seeds or seedlings into the ground

• Tending - undertaking of activities to ensure the survival of the trees or to enhance their growth, quality and vigour, and includes:

• Fertilising after planting;

• Spraying trees against pests and diseases;

• Eliminating weeds;

• Fire protection measures;

• Watering; and

• Making or maintaining of roads that is integral to the forestry activities (i.e. forestry roads).

Any other use of such roads, if any, is minor and or incidental to the purpose of carrying on the above activities.

Relevant legislative provisions

Fuel Tax Act 2006 section 41-20.

Reasons for decision

Question 1

Are roads located within the forestry plantation areas on the Land considered to be 'forestry roads' for the purposes of section 43-75 of the FT Act and therefore not public roads under section 41-20 of the FT Act?

Fuel Tax Ruling FTR 2012/2 Fuel tax: fuel tax credits for taxable fuel acquired or manufactured in, or imported into, Australia for use in carrying on an enterprise involving 'forestry' as defined in section 43-75 of the Fuel Tax Act 2006 (FTR 2012/2) provides guidance in respect of the meaning of roads, public roads and forestry roads.

The word 'road' is not defined in the FT Act. As explained in paragraph 179 of FTR 2012/2, the Commissioner considers that the relevant ordinary meanings are:

1. a way, usually open to the public for the passage of vehicles, persons, and animals. 2. any street so called. 3. the track on which vehicles, etc., pass, as opposed to the pavement.

Paragraph 180 of FTR 2012/2 further explains that 'road' includes the infrastructure that is necessary to and forms a fundamental part of the road network within the forest, such as culverts, bridges and hardstand areas (also known as log dumps).

Paragraph 57 of FTR 2012/2 lists the roads that the Commissioner considers are not public roads for the purposes of the FT Act. This list includes a forestry road.

Paragraph 61 of FTR 2012/2 defines 'forestry roads':

61. For the purposes of section 43-75, a forestry road is a road within a forest or plantation which is constructed and maintained primarily and principally for the purposes of providing access to an area to facilitate forestry activities (for example, to facilitate trees to be planted or tended in the area, or timber felled in the area to be removed) and for related forestry management activities.

Within these plantation areas roads have been constructed and maintained to provide access to the plantation areas to carry out the forestry activities or the Licensed Activities, including planting and maintaining trees for harvesting and transporting, milling and processing felled timber in the plantation / forestry areas.

As explained in paragraphs 57 and 221 of FTR 2012/2, roads that constitute 'forestry roads' are not 'public roads'.

Paragraph 225 of FTR 2012/2 explains that limited public access to the forestry roads does not make them public roads.

225. The Commissioner takes the view that forestry roads are not public roads even if public access is encouraged. A forestry road does not become a public road merely because members of the public use the road to access a forest area for recreation purposes (for example, for picnics or for bushwalking) or for the purposes of removing firewood from designated areas for personal use. The use of forestry roads for such purposes is subordinate to the primary objects of forestry management and the production and harvesting of timber. Members of the public do not have a sufficiently unfettered right of access to, or use of, the roads to characterise them as public roads.

We consider that the roads within the forestry plantation areas on the Land are 'forestry roads' for the purposes of section 43-75 of the FT Act. Accordingly, they are not 'public roads' for the purposes of section 41-20 of the FT Act.

Question 2

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

Fuel Tax Ruling FTR 2012/2 Fuel tax: fuel tax credits for taxable fuel acquired or manufactured in, or imported into, Australia for use in carrying on an enterprise involving 'forestry' as defined in section 43-75 of the Fuel Tax Act 2006 (FTR 2012/2) provides guidance in respect of the meaning of roads and public roads.

In question 1, the meaning of 'road' for the purposes of the FT Act was explained.

We accept that the various paths, tracks and roads used by vehicles travelling from one place to another within the Land area may fall within this definition and are considered to be 'roads' for the purposes of the FT Act.

This ruling considers whether roads other than forestry roads are public roads for the purposes of the FT Act.

'Public road' is not defined in the FT Act. However, in paragraph 50 of FTR 2012/2, the Commissioner considers that, for the purposes of the FT Act, 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 will be given to these 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 vested 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

In paragraph 211 of FTR 2012/2, the Commissioner considers that roads and streets which are vested in, constructed or maintained by a local government authority for general public usage are public roads for the purposes of section 43-75 of the FT Act.

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

Paragraphs 212 and 213 of FTR 2012/2 state:

212. If a road is not under the control and management of a state or territory authority which is responsible for the provision of road infrastructure to the public, then whether the road is a 'public road' under the common law is a question of fact.

213. For a road to be dedicated as a public road at common law, 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'.

Paragraph 214 lists the factors to be considered in determining whether an owner of land has dedicated it as a public road under the common law. These 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.

All of the information provided indicates that there has not been any declaration or an intention to dedicate these roads as public roads. On the basis of this and our assessment of your scenario against the other criteria in paragraph 50 of FTR 2012/2 and the accompanying guidance in paragraphs 200 to 220 of FTR 2012/2, we consider that the roads on the privately held land and the 'primary' and 'commonly used' roads are not public roads because these roads 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.

Accordingly, the roads on privately held land and the 'primary' and 'commonly used' roads are not 'public roads' for the purposes of section 41-20 of the FT Act.