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Insights | Local Government (Mobile Food Vendors) Amendment Bill

JUNE 2017

  • The Local Government (Mobile Food Vendors) Amendment Bill is currently under consideration by Parliament
  • The Bill proposes to change the regulatory scheme surrounding the granting of section 222 permits to food truck vendors by local councils
  • The granting of permits by councils would be made compulsory and state-wide regulations imposed in relation to fees, operating hours and the number of trucks that can operate in a council area

In August 2016, the State Government introduced the Local Government (Mobile Food Vendors) Amendment Bill 2016 (Bill) into Parliament for its consideration. The Bill was a response to an earlier State Government discussion paper of November 2015 and position paper of May 2016 recommending changes to the regulation of mobile food vendors.

The Bill’s purpose is to establish a uniform regulatory system for food trucks across the state by way of regulation, restricting the discretion of local councils in granting (or choosing not to grant) section 222 permits for business purposes under the Local Government Act 1999 (LG Act).

Who will this affect?

The proposed changes will relate to any ‘mobile food vending business’ seeking to operate on a public road in a council area. The Bill introduces a new definition to the LG Act for this purpose, specifying that such a business involves the sale of food or beverages from a ‘vehicle’ (within the meaning of the Road Traffic Act 1961).

The meaning of ‘vehicle’ is quite broad and would capture a person selling food or drinks from a car, trailer or bicycle (amongst other things).

The proposed regime will not, however, relate to the selling of food on land other than public road, even if done by someone who would otherwise be considered a mobile food vending business. For instance, farmers markets that are run on privately owned or council-owned land. Such a land use is covered instead by the Development Act 1999 and associated regulations (note that an exemption currently exists for the sale of food produce on land and buildings where the display area is less than the prescribed area and there is no significant detrimental impact on surrounding amenity).

What changes does the Bill propose?

If passed, the Bill will make it mandatory for councils to grant a section 222 permit to a mobile food vending business upon application, subject to the regulations. Any conditions imposed on such a permit by a council are also to be consistent with the regulations. The regulations will not be published until the Bill is passed, but various details contained within the draft regulations are referred to in the Parliamentary debates.

In particular, it is stated that the regulations will prevent councils from limiting the number of permits issued to food trucks, limiting their operating hours and limiting the type of food sold. The regulations will also establish maximum permit fees. At the time of writing, the monthly cap is proposed at $200 and the annual cap at $2,000 (exclusive of GST).

As an alternative method of regulation, councils will be required to establish location guidelines for their council area to determine where food trucks will be able to trade. It is proposed that this would be done by way of a map or by imposing minimum distances from existing brick-and-mortar businesses. It was suggested in the Legislative Council debates that councils who do not have a ‘food truck culture could simply move a motion in relation to not establishing such guidelines, thus avoiding the administrative
burden. Such guidelines are to be amendable at councils’ discretion, allowing councils to respond, for instance, to a large event in their area providing an opportunity for food trucks to trade.

It was emphasised that the proposed regulations do not affect obligations under the Food Act 2001 in relation to food trucks, and that food trucks will still
have to comply with relevant parking restrictions in their council area (it was suggested that the location guidelines developed by councils could take this into account).

If a food truck wishes to trade across council areas, as at present, it will be required to obtain a permit from each separate council. Some discussion was had about introducing food inspection ‘passports’ which confirm previous compliance with the required standards in order to reduce the administrative burden on food trucks and facilitate their operation across council areas – however, this is not provided for in the draft regulations.

Cancellation of permits and existing permit-holders

In line with the proposed restrictions on the granting and conditions of section 222 permits, the Bill also imposes a higher threshold before a council is able to
cancel a permit. A breach by the mobile food vending business must be ‘sufficiently serious’ before it can justify cancellation. If a permit is cancelled, however,
the vendor cannot reapply for a new permit for at least six months.

The government has also recently proposed an amendment to add a penalty provision for breach of permit conditions.

It is proposed that holders of existing section 222 permits who meet the definition of a ‘mobile food vending business’ will be able to request the issue of a fresh permit from their local council to come under the new regime.

Next steps

At the date of writing, the Bill is currently in the second reading stage in the Legislative Council. There has been considerable debate regarding its purpose and the restrictions that will be imposed by the regulations. The Opposition has indicated that it will not be supporting the Bill; it thus remains to be seen whether it will successfully pass the Legislative Council.

In the interim, all food truck vendors who seek to use a public road for business purposes must comply with the existing section 222 permit scheme under the LG Act.

If you have any queries in relation to public road authorisations and permits under the LG Act, or the operation of the Development Act in relation to the sale of food or produce from other land, get in touch with one of our practitioners below.

Disclaimer

The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.