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Is the loading and transporting of rubble from an agricultural property to locations on that agricultural property, 'earthworks' as defined in paragraph 25(e) of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?

No. The loading and transporting of rubble from an agricultural property to locations on that agricultural property is not 'earthworks' as defined in paragraph 25(e) of the EGCSA.

An entity operates a construction company.

The entity is contracted by a farmer to load and transport rubble to various locations on the agricultural property. The rubble is required for use in activities around the agricultural property, some of which are earthworks.

A diesel powered front end loader and truck are used to load and transport the rubble.

Section 53 of the EGCSA provides that, subject to the conditions and restrictions specified in the Energy Grants (Credits) Scheme Regulations 2003, an entity is entitled to an off-road credit if they purchase or import into Australia off-road diesel fuel for a use by them that qualifies, including 'agriculture'.

'Agriculture' is defined in section 22 of the EGCSA to include an 'agricultural construction activity', which is defined in turn in section 25 of the EGCSA.

The most pertinent activity in section 25 of the EGCSA is set out in paragraph 25(e), which states that the term 'agricultural construction activity' includes: the carrying out of earthworks for use in a core agricultural activity if the earthworks: (i) are carried out on an agricultural property where a core agricultural activity is carried on; and (ii) are carried out by the person who carries on the core agricultural activity or by a person contracted by that person to carry out the earthworks.

In order to fall within paragraph 25(e) of the EGCSA the loading and transporting of the rubble must first constitute 'earthworks'.

Section 32 of the EGCSA defines 'earthworks' as: a. the forming or maintenance of levee banks or windbreaks; or b. contour banking; or c. land levelling or land grading.

The loading and transporting of rubble raised from a pit on an agricultural property for use on an agricultural property, does not satisfy the definition of 'earthworks' in the EGCSA. Rather, the loading and transporting of rubble constitutes a separate activity that is carried out prior to the commencement of any earthworks.

Accordingly, the loading and transporting of rubble raised on an agricultural property, for use on an agricultural property, is not 'earthworks' as defined in paragraph 25(e) of the EGCSA.