A popular and growing small business at Noraville has been shut down, and six people are now out of work, because of what the owner says is Central Coast Council’s “incorrect interpretation of state legislation”.
Olivia Duff has been making and selling ice cream from a shipping container decked out as a mobile commercial food kiosk and operating legally with appropriate licences required by federal and state laws.
Duff’s Ice Cream is audited by the NSW Food Authority and the business holds a dairy licence which requires sample testing for E.coli, L.Monocytogenes and salmonella – a procedure carried out every 10th batch of ice cream although it is only required every 20th batch.
But Central Coast Council ordered Duff to cease trading immediately because it was “unlawful”.
In a Council letter dated November 13 Deputy Control Officer Grant Foster said: “Council does not consider a shipping container to be a mobile food outlet or exempt under the State Environment Planning Policy, subdivision 27A”.
“We have been operating legally, and under the federal governing body Food Standards Australia New Zealand, section 27A Mobile Food and Drink Outlet, it specifically calls out shipping containers as mobile premises,” Duff said.
“Council’s attitude is in direct contrast to its own advertising, hiring and utilisation of a 20ft shipping container for food and beverage catering which is moved from location to location.
“And ironically Council has also used our services in the past for catering on movie nights.
“Similar structures on trailers operate at Wyong; there’s one just like mine operating about a kilometre away.
“Council also operates a pop-up gallery/artist shop in a shipping container currently at Toukley and previously at The Entrance and, interestingly, at a recent festival there was a Jim Beam mobile shipping container converted to a kitchen bar, not on a trailer, not on wheels but clearly mobile as it was there for two days and then moved.”
A spokesperson for Council said Duff’s Ice Cream was not operating in accordance with relevant planning controls but Duff disputes this, saying that an approval from Council is not required.
“We are a mobile food business according to 27A (of the Food Standards) audited by the NSW Food Authority; we are exempt, however, we did inform the Council when we started our kiosk, they were in full knowledge of this operation,” she said.
“I have met with an independent town planner who advised … we are legal … NSW State Planning says a development application to Council is not needed and the placement of the container is lawful on private property as agreed by the landowner.
“It makes no sense and my legal team says the order to cease trading immediately was harsh as there was no food safety risk, there was no risk to anyone.”
Council says there have been community complaints the ice cream kiosk was causing amenity and safety impacts.
“Our mobile kitchen is on private property which does not affect the traffic on Central Coast Hwy and there is plenty of parking across the 35m frontage of our own property,” Duff said.
“Customers come and go in small numbers; the average time someone is here is three minutes, just long enough to scoop an ice cream, and we don’t encourage people to hang around.
“No-one is doing anything illegal by parking in front of my place, we’ve been really careful not to bother other people and our opening hours were only four-and-a-half hours per day for four days of the week, Thursday to Sunday from 1pm to 5.30pm.”
Council says potential traffic and pedestrian safety impacts which were never assessed by Duff’s Ice Cream have been a key determining factor in Council taking the action it has.
“Council has to make difficult decisions when discharging its regulatory responsibilities that are in the best interests of the community at large to protect public health and safety, amongst other considerations,” a spokesperson said.
“It’s been a very stressful time … this is my whole livelihood, I’m making no money and it’s sending me bankrupt,” Duff said.
“Council has now sent an order to remove the container – I am trying to get a meeting to talk to them about it but I really don’t think they want to help – they have provided zero help.
“I was one month from obtaining a shop before Council’s callous closure and as my entire livelihood was stripped from me this meant Duff’s Ice Cream couldn’t sign the lease as we didn’t have funds coming in.”
Sue Murray
Council needs to show proof of these alleged “community complaints” and provide a detailed risk analysis showing potential impacts to pedestrian and traffic movements &/or public health and safety.
Do we really have a council as such.I was under the impression that we had a couple of caretakers running it?Who applied the pressure to have it shut down?this seem to be about MONEY,pure and simple.What rules are being Applied at this time.Who carried out the safety scene at this area.Did they have the proper qualifications to carry out a survey.Seem to be a knee jerk reaction to a very good business.
Seems council is very choosy when it comes to shipping containers on private land. I know of many shipping containers on rural land used for different purposes. We had neighbours who ‘deposited’ one on the nature strip at the front of our property. When council were called the neighbour insisted the container was temporary while furniture was removed from it. As time went on the container was moved onto their property and became a gym. Council not interested! This is a knee jerk reaction to a great small business.