Claims of council's 'harassment' land in planning court

A TOOWOOMBA business has challenged Toowoomba Regional Council in court over a show cause and enforcement notice issued against the company.

FILE PHOTO: 37 Godsall St. Picture: Bev Lacey

TOOWOOMBA Regional Council officers tailed a Toowoomba businessman while he visited his parents' home on Murphys Creek Rd in an attempt to find whether there was evidence of him operating an allegedly non-compliant home-based business, documents filed in the Planning and Environment Court claim. 

Xolta Pty Ltd, trading as Integrated Building Certification, has appealed against a show cause and enforcement notice issued against the company by the council. 

The notices relate to the council's claim Xolta director Grant Forde used his residential address, 37 Godsall St, as an office, in contravention of the planning scheme. 

Solicitors for Xolta deny the claim and said Mr Forde operates from his home as a home based business in accordance with the council's requirements. 

Previous inspections by council officers in August 2017, November 2017, and October 2018 found there were no breaches of the planning scheme in Xolta's operation from Godsall St. 

The owner of the property, Daniel Berigan, has an ongoing appeal on an unrelated matter in the Planning and Environment Court against the council after it knocked-back his proposal to turn the home into a vet service in 2017. 

Xolta was first issued a show cause notice on March 11, with the council stating "an inspection conducted by council's senior development compliance officer Troy Anderson on February 20, 2019, revealed the premises are being occupied and used by Xolta Pty Ltd... for an office", a use "for which a development permit is required". 

The council also issued him with a $6527 fine. 

A subsequent enforcement notice from the council accused Xolta owner Grant Forde of "not residing at 37 Godsall St, East Toowoomba, but residing at 1 Murphys Creek Rd at the time of the offence; and non-resident employees exceeded more than one on the premises at any one time". 

In Xolta's notice of appeal, the company's solicitors state: "Council officer Danielle Fitzpatrick has advised Forde's solicitor Tom Sullivan that a) council officers have followed Forde driving to Murphys Creek Rd, and b) council officers rely on this as justification for concluding that Forde resides at Murphys Creek Rd". 

Court documents state that while Mr Forde is the owner of the property at Murphys Creek Rd, his parents live there and considering his father's health issues, "it should not be unexpected that Forde spends a considerable amount of time at Murphys Creek Road visiting his parents and, indeed, helping them". 

"At 36 years of age, and single, Forde does not especially want to reside with his parents, and doesn't," the documents said. 

Responding to the show cause notice issued on March 11, Xolta's solicitors noted: "Given that the circumstances and activities of the business have not materially changed since council has on three separate occasions been satisfied of compliance, Mr Forde is concerned that the continued harassment of him, his family members and employees is motivated by his landlord's ongoing litigation with council or that the business is a competitor of council's wholly-owned Total Range Certification". 

Documents filed with the court by Xolta's solicitors also show that Mr Berigan was the subject of show cause notices in relation to the Xolta matter. 

Xolta's solicitors stated the council's officer Troy Anderson did not inspect the premises on February 20 and that he had attempted to perform an inspection on February 19 but was turned away because Mr Forde was departing for a meeting in Brisbane. 

The show cause notice was therefore "false in a material respect", Xolta's solicitors stated, and therefore the enforcement notice was also invalid. 

Xolta is seeking a declaration that the show cause notice is invalid, that the enforcement notice is set aside, and that the council pay Xolta's costs. 

TRC planning and development committee chair Chris Tait said the council had received the notice of appeal and was unable to comment at this stage of the legal proceedings.

Originally published as Claims of council's 'harassment' land in planning court