Assignment task: Help answering with ILAC methods + case law to support application
Winnie's family has operated a restaurant in a two-storey building known as 'Wattle House' since 1927. Winnie has owned and operated the restaurant since 1984 when she took over the restaurant from her father. Wattle House is on land zoned C2 Environmental Conservation under Shellharbour Local Environmental Plan 2013 (NSW). (Note this zone was previously named the E2 Environmental Conservation zone.) Winnie's restaurant is located on the second floor of the two-storey building and has always been open on Friday evenings from 5-9pm for dinner and Saturdays and Sundays from 11am-3pm for lunch and 5- 10pm for dinner. The ground floor of the building had been owned by an unrelated company, A-Z Florists Pty Ltd, since the 1930s. The ground floor was previously used as a flower shop since the 1930s but had not been used for anything at all since 2002. On 16 April 2022 a famous singer, Nell Starbright, held her 30th birthday dinner at Winnie's restaurant. Friends and family were invited from all over the world. Nell had a famous chef from England make her birthday cake, which was a life-sized imitation replica of her favourite guitar she used during her concerts. Just as a waiter was bringing out the birthday cake with the candles lit so that Nell could blow out the candles, another waiter tripped and knocked the cake flying through the air. Unfortunately the cake landed all over Nell and her designer dress. Some reporters that happened to be at the restaurant having dinner took pictures and posted them to social media, causing Nell much embarrassment. Nell demanded that Winnie fire the waiter immediately, but Winnie refused as the waiter was her fiancé and she tried to assure Nell it was just an accident. Nell was not convinced and thought that Winnie was trying to obtain publicity. Nell retaliated by posting on social media: "What was supposed to be a milestone celebration was ruined by this terrible venue. Nobody should be put through this sort of humiliation. Avoid this terrible restaurant. Terrible food, terrible service and Winnie is such a terrible manager." As a result of the incident, by late April 2022 the vast majority of bookings at the restaurant had been cancelled, except for the odd loyal customer. In early May 2022 Winnie advertised "buy one, get one free meals", but even this failed to result in any new customers given Nell was sending constant messages on social media not to eat at the restaurant. By late May 2022 Winnie decided she could no longer afford to keep the restaurant open with the sales so low, as she could not afford to pay her staff. On 23 May 2022 she decided to close the restaurant, placing a sign on the door reading: "Closed, but we'll be back soon. We will prove our innocence in court over this silly saga with Nell." Winnie then launched defamation proceedings against Nell to try and gain back her tarnished business reputation. Winnie sought to have the defamation proceedings heard as soon as possible in the hopes of clearing her name and reopening the restaurant. However, despite opposition from Winnie, Nell kept getting the court to push the hearing back given she was completing a lengthy world concert tour. The court delivered judgment in the matter on 2 June 2023, with the court finding in Winnie's favour and awarding her $800,000 in damages. Shortly after the hearing, Winnie was contacted by a famous chef named Rege, who had also had a previous run-in with Nell. He told Winnie he wanted to help her out and be the new head chef at Winnie's restaurant. Winnie reopened the restaurant on 16 June 2023. Rege's cooking was an instant hit and tables at the restaurant quickly booked out weeks in advance. By July 2023 the restaurant had become so popular that Winnie bought the ground floor of the building from A-Z Florists Pty Ltd and started using the ground floor as part of the restaurant as well, setting up tables and chairs to cater for an extra 120 patrons. This was in addition to the 100 seat capacity that the second floor 5 had always catered for. The restaurant was now open to patrons on both the ground floor and second floor 7 days a week from 7am to 12 midnight and catered for breakfast, lunch and dinner. All was going well until Winnie received a letter from the local council stating: We have received complaints from a number of neighbours regarding the illegal use of the property known as Wattle House as a restaurant. Residents are concerned about all the traffic and noise. If you do not immediately cease illegally using the property as a restaurant we will take you to court to stop you. Winnie was shocked. "Council can't do that", she thought to herself, "I have existing use rights". Advise Winnie as to whether she could rely on existing use rights under the EP&A Act in relation to the above scenario. You need only discuss legal issues relating to existing use rights. You can assume that: Shellharbour Local Environmental Plan 2013 (NSW) is the first environmental planning instrument that has applied to the relevant land; and no development consent has ever been granted for Wattle House.