Red Diesel – when is it legal?

Those involved in agriculture and forestry will know that they may use cheaper red diesel during some operations. However, they will also know that the law in this area has always been complex and difficult to understand.

It is to be welcomed that the NFU, the National Association of Agricultural Contractors, the Confederation of Forest Industries, Her Majesty's Revenue and Customs and the DVLA have published a joint memorandum of agreement in order to clarify when red diesel may be used and when it would be illegal to use it.

It is important to only use red diesel when the law allows as it is a criminal offence to misuse or supply red diesel or mix it with any other fuel. It is also an offence to move any designated chemical marker or dye from the red diesel or adding anything that might counteract the marker. These offences can be punished administratively by penalties and the fuel and even vehicles being seized and forfeited. The offences may also be dealt with in the criminal courts where they carry unlimited fines and a prison sentence of up to 7 years.

If the offences are dealt with administratively, the decision of Her Majesty's Revenue and Customs can be appealed by way of review. This must be submitted to Her Majesty' Revenue and Customs within 45 days of the original decision and simply requires an Independent Review Officer to review the decision made. If you are unhappy with the review decision, the matter can be appealed to the VAT and Duties Tribunal within 30 days.

In brief, the memorandum states that agriculture, horticulture and forestry includes;

• The breeding or rearing of any creature kept for the production of food, wool, skin or fur, or for the purpose of its use in the farming of land.

• The growing or harvesting of crops.

• The growing or harvesting of flowering or ornamental plants.

• The growing or harvesting of timber of other forestry products.

• The upkeep of agricultural land.

The memorandum also states that agriculture, horticulture and forestry does not include;

• The breeding, rearing or keeping of any creature relating to sport or recreation

• Dealing in agricultural, horticultural or forestry products.

• Landscaping

• The maintenance of recreational facilities

• Flood protection

• Peat or loam extraction

• The exploitation of wild animal or fish stocks

• The construction of buildings or other structures used for any purpose.

• The transportation of agricultural, horticultural or forestry produce, livestock, implements, inputs or waste, other then were this is incidental to an agricultural, horticultural or forestry operation being performed on land.