Red diesel –when is it legal?
 Robert Ward
New guidance has been issued to clarify how red diesel can be used by farmers and
agricultural contractors and ensure both they and enforcement officers have a clear
understanding of how the law will be applied. Robert Ward explains what it means to
farmers and foresters. He is a solicitor in the Regulatory and Corporate Defence Unit
at law firm Langleys, which has offices in York and Lincoln.
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 add anything that might
counteract the marker. These offences can be
punished administratively by penalties and the fuel
and even vehicles 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 seven 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’s 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 than where this is incidental to an
agricultural, horticultural or forestry operation
being performed on land.
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