Statutory and developers covenants

Covenant Types and Impact

Are you dreaming of building your own home? Well let’s imagine for a minute that you have just signed a contract to buy a block of land and about to set that dream in motion. However, amongst all the paperwork you notice that the property has a covenant over the land. So, what does this mean for the design and construction of your new home?

Covenants are basically conditions placed on a property that must be followed according to law. The first thing to know is that there are two types of covenants in the building industry: Statutory and Restrictive.

Statutory Covenants

Statutory Covenants are conditions that are attached to a title of land that limit building work in certain areas of the property, and which must be met for the life of the covenant. State and Local Governments often place Statutory Covenants over land to protect state and local interests and are usually agreed between the landowner and Local Council at the time of division.

To give you one example, imagine you’ve just purchased a block of land on a new residential estate attached to a lush rainforest. A 25mx25m pad has been cleared on the site and the developer tells you the house you build must be constructed inside this pad. This is because this property has Statutory Covenant conditions that serve to protect the natural vegetation on the property. Therefore you will not be permitted to remove any further vegetation.
The Building Act 1975 requires the registered holder of the covenant – e.g. State Government or Local Council – to consent to the building work prior the release of a Building Permit.

Restrictive Covenants – Residential

Restrictive covenants are legal agreements made between the current landowner and the prospective landowner. Although these covenants are not controlled through Planning and Building Legislation, it is a legal agreement by which builders and landowners must abide.

The conditions that apply when building on a residential estate would be a good example of Restrictive Covenants. Developers of such estates put a lot of thought in to creating their ideal residential Utopia; high quality living, a sense of place, and all in balance with the natural environment. Restrictive Covenants help them achieve these objectives by controlling construction to fit within their design parameters.

So, do not be surprised if the developer of your estate tells you that your proposed front boundary fencing does not comply with the pre-determined 1.2m height limit. As you agreed to this design covenant when you purchased the land, you will need to comply and reduce the height of your front fence.

To avoid any disappointed expectations or conflict, carefully check the conditions and ensure covenant approval is obtained prior to construction. It is also imperative to consider that, although a developer has provided you with covenant approval, if it is in conflict with the planning or building legislation, e.g. boundary setbacks, then it is highly likely the planning and building legislation will prevail.

 

To summarise, before you purchase a property and begin planning your design, be sure you have the answers to the following questions:

1. Does your property have any covenant conditions?
2. If yes, what are they?
3. What is the life span of the covenant?
4. How will this limit your design?
5. Have I applied for construction approval with the appropriate authorities?
6. Have I discussed the above with my Building Certifier to ensure I am completely in accordance with all conditions and processes?

Share on

I am a qualified Town Planning Consultant and began working at Development Certification Pty Ltd whilst completing my studies in 2010. I have a Bachelor degree in Planning from James Cook University. I strongly believe the building and development industry is a collaborative body of professionals who, by working together and facilitating good development practices, can make our country the most liveable in the world. My role is to help consolidate Town Planning and Building Certification within Development Certification to ensure our clients are provided with the industry knowledge required for successful development.