Council Statement - Cakes By Rach Cafe

Matters related to development consents on properties can be complex as they can involve commercial arrangements between property owners and their tenants.

Wollongong City Council has been working with the tenant of the property since late 2022 on matters related the operation of a café at this site. Prior to this date, the property owner was provided with information regarding historical planning refusals for the property to operate as a restaurant/café.

Council has received multiple complaints from several parties about the use of this site as a restaurant/café. There is no development consent for use of this site as a restaurant/café, with the consent only permitting it as a ‘neighbourhood shop’. As part of our ongoing contact with the current tenant, we have provided advice that the use of the premises as a restaurant/café is prohibited.

While the café/restaurant use is prohibited, there has been suggestion that the use may be allowed to continue under what is known as “existing use rights”. This requires proof to be provided that the use was lawful before the planning rules changed making it prohibited. Unfortunately, there is no evidence in Council’s records that show that the use of the site as a restaurant or café started lawfully, recognising in planning law that an earlier commercial use as a shop is a different use from a café.

As no resolution has been reached with the tenant, Council issued a Notice of Intention to Issue an Order in December 2023. An Order to cease the use of the property as a restaurant/café was issued last week.

There is no easy solution, as amending the zoning rules applying to the land would be required to enable an application for the use of the café/restaurant to be considered for the site. The process to change the zoning rules would need to follow a formal process set by the State government.