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Lawyers for local government

LG Alert – Dishing it Up – The ‘Food Truck’ Amendments to the Local Government Act get over the line (August 14th, 2017)

On Wednesday 9 August 2017, the Local Government (Mobile Food Vendors) Amendment Bill 2017 (“the Bill”) passed both Houses of Parliament and will now become law. The Bill is now currently awaiting assent.

The Bill progressed Parliament in recognition of the fact that mobile food vending businesses are growing in number, and Parliament does not consider that the permit framework provided for in section 222 of the Local Government Act 1999 (“the LG Act”) adequately caters for such businesses.

Once the provisions of the Bill take effect (which will occur on a date yet to be proclaimed) the LG Act will be amended as follows:

  • Section 4 – Definitions

The definition of a ‘mobile food vending business’ will be inserted. The term will be defined as “a business involving the sale of food or beverages from a vehicle (within the meaning of the Road Traffic Act 1961).”

The definition captures businesses operating from trucks, vans and trailers.

  • Section 222 – Permits for business purposes

A new subsection (1a) will be inserted, which will require councils to grant a permit for the purpose of a mobile food vending business. This provision will remove councils’ discretion to allow mobile food vending businesses to operate in its area.

  • Section 224 – Conditions of authorisation or permit

A council will still be able to attach conditions to a permit issued for a mobile food vending business, including as necessary, to protect the council’s interests. However any such conditions must be consistent with:

  • the ‘location rules’ that councils will be required to adopt under section 225A; and
  • any requirement prescribed by regulation .

Notably, there is an exception for ice-cream mobile food vending businesses (colloquially known as the ‘Save Mr Whippy Amendment’ when being discussed in Parliament) which recognises that ice-cream vans are not typically stationed in one location for an extended period of time. The exemption operates such that ice-cream vans will not be subject to the location rules adopted by a council.

  • Section 224A (new) – Breach of condition or authorisation or permit

This is a new offence provision which will give councils the option of expiating (or prosecuting) a person who has failed to comply with a permit issued for the purposes of a mobile food vending business. An expiation fee of $210 and maximum penalty of $2,500 will apply to this offence. This provision recognises that some breaches may not warrant cancellation of a permit, but ensures a permit holder can still be held accountable for the breach.

  • Section 225 – Cancellation of authorisation or permit

This provision will operate such that a mobile food vendor business permit can not be cancelled for a breach of a condition unless the council is satisfied that the breach is “sufficiently serious to justify cancellation of the permit”.

If a council cancels a mobile food vending business permit, then pursuant to s225(4) (as inserted by the Bill) the permit holder will be prevented from reapplying for a new permit for a period of time specified by the council (not exceeding 6 months).

  • Section 225A (new) – Location rules – general

This new provision will operate to require all councils to prepare and adopt location rules that establish where, within the council area, mobile food vending businesses may operate.  Whilst the Bill does not prescribe a timeframe within which councils must adopt such rules, a timeframe of three (3) months from the commencement of the Bill was foreshadowed during the Parliamentary debates, which we anticipate will be prescribed by regulation.

The location rules must comply with any requirements prescribed by regulation and/or any requirements specified by the Minister by notice in the Gazette (the Minister’s requirements may relate to all location rules generally or the rules of a particular council). The requirements for location rules will further limit a council’s ability to make choices regarding the operation of food trucks within its area.

  • Section 225B (new) – Location rules – disputes

The new section 225B gives an aggrieved ‘bricks and mortar’ business that is directly adversely affected by the location rules of a council a right of review against the council’s location rules to the Small Business Commissioner (“SBC”).

On the conclusion of a review, the SBC may recommend that the council amend its location rules. If such a recommendation is made, the council must consider amending its location rules, and if it resolves not to amend, is required to furnish the written reasons for the resolution to both the SBC and the applicant who requested the review.

Importantly, if dissatisfied with the reasons of the council, the applicant may ask the SBC to direct the council to amend its location rules.

If the SBC makes such a direction, then the council must amend its location rules as directed. A failure to do so is an offence that attracts a maximum penalty of $5000.

The Bill includes transitional provisions that will operate such that mobile food vending businesses that currently hold a permit under section 222 of the LG Act may surrender the permit and request that a new permit under section 222 (as amended by the Bill) by issued by the relevant council.

Finally, whilst we have not yet seen the corresponding draft regulations, it is clear from the debate reported in Hansard that the regulations will likely include (but will not be limited to):

  • the maximum annual and monthly permit fees that councils can charge for mobile food vendor business permits;
  • requirements that food trucks do not unduly interfere with other vehicles and thoroughfares; and
  • an awareness of disability parking spaces.

The provisions of the Bill will commence as law on a date to be proclaimed. In the meantime, if you have any questions about the future operation of the Bill, or your council needs assistance in drafting location guidelines please contact Cimon Burke on 8113 7105 or at cburke@kelledyjones.com.au or Tyler Johns on 8113 7108 or at tjohns@kelledyjones.com.au