Mobile Food Vendors no longer flavour of the month!

Mobile Food Vendors no longer flavour of the month!

25 October 2021

Less than four (4) years since its commencement, the Mobile Food Vending Businesses (MFVB) Scheme introduced into the Local Government Act 1999 (the Act) has been wholly deleted. This has occurred with effect from 20 September 2021 through the commencement of the first ‘tranche’ of the LG Reforms in the Statutes Amendment (Local Government Review) Act 2021 (the Amending Act).

Details of the former MFVB Scheme can be found here in an earlier Alert of ours.

The deletion of the MFVB Scheme and consequential amendments to the Act mean that:

  • new applications for section 222 permits for MFVB’s are not required to be treated differently from other applications seeking permission to use roads for a business purpose. To this end:
    • there are no longer any legislative requirements for conditions attaching to a section 222 permit for a MFVB. At present, as is the case for other forms of section 222 permits, Councils can grant them ‘on conditions the council considers appropriate’;
    • councils are no longer obligated to adopt and maintain location rules for MFVB’s. A council may, however, purely as a matter of discretion, retain their location rules as a policy document to guide decisions on applications for section 222 permits for MFVB’s;
    • a MFVB permit can be cancelled for a breach of a condition on the same basis as any other section 222 permit (previously, a MFVB permit could only be cancelled for a breach where the breach was “sufficiently serious to justify cancellation of the permit”);
    • failing to comply with a permit issued for the purposes of a MFVB is no longer an offence. This means that cancellation of a permit is the only recourse to address a breach and cancellations must occur in accordance with the process set out at section 225 of the Act); and
    • there is no longer a right of review to the Small Business Commissioner against a council’s location rules by persons aggrieved or directly adversely affected by the location rules (such as a bricks and mortar business);
  • location rules continue to apply to existing section 222 permits for MFVB’s which were granted prior to 20 September 2021 as do the formerly-required conditions;
  • there is a new requirement for conditions attached to a section 222 permit or a section 221 authorisation to comply with any requirements prescribed by regulation. Whilst there are no regulations at present, the ability remains for the Minister to create specific conditions applicable to permits issued for MFVB and other activities approved through a section 221 authorisation or section 222 permit.

In light of these amendments, councils should consider reviewing their policies and location rules concerning section 222 permits to determine whether any amendments are needed. This review should include whether former location rules are to be retained as guiding documents and to ensure compliance with the Act.

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