Councils over interpreting brick covenant?

I recently hit a snag with my new build with Metricon.

On the block I purchased there is an old covenant when the land was subdivided in 1971 that "the exterior walls of such dwelling or dwellings (except for usual outbuildings) are substantially of brick or brick veneer."

I checked with my lawyer and he said so long as the build was 51% brick that would qualify. I estimate my build would be approximately 55 to 60% brick. He said that was put in place at the time to stop fibro cement houses getting built. I'm waiting to get the actual brick percentage.

However Metricon has said that some councils in Victoria are interpreting the following and have actually enforced it on some current plans.

Brick
Metricon accepts rendered brick as compliant
Council accepts face brick only
If a Metricon job has a ‘brick’ covenant and the job requires planning, we need to abide by Council’s interpretation

Substantially Brick
Metricon requires as much brick as possible to be considered compliant
Council requires ground floor and 50% of first floor including the façade as a minimum to be considered compliant
If a Metricon job has a ‘brick’ covenant and the job requires planning, we can go by Council’s interpretation

My metricon consultant has not been able to get further information from head office as to which councils have ordered this. Near by in the same area as me is a house that is completely rendered.

I signed a waiver to allow them to build in contravention and now Metricon are still saying its not enough.

My lawyer says they are completely over reacting and wants to see the exact wording of the covenants where substatially brick has been interpreted as ground floor and 50% of first floor including the façade as a minimum.

She also said we could apply to make an amendment to that title to change the covenant. My lawyer said that would take time and could end up costling quite a lot.

Has anyone encountered this and either managed to get the build done or been made to build to the council definitions?

Hey andy8

Did you get a resolution to this? It's been a while since you posted this...

I'm in a similar situation and doing a single to double storey conversion.

1. We may not have to go through town planning
2. Ground floor is all brick
3. The top floor is all Hebel

So not sure if we should allow update to plans or if just stick to proceeding. We're in the Whitehorse council.

Hi jag_sv and andy8

Was curious to know if you got an update.

Was speaking with a consultant from Boutique who indicated they had to build the 1st floor with bricks as well.
Another builder took the view of 51% would suffice.

In Knox area.

It's been a while, but ours was this:

We didn't need to go through town planning, so council didn't really have a say on it.

Surveyor, I believe doesn't care either, as they go by what council requires and building codes require.

If we were to not even follow the covenant then it would be a neighbour that would need to go through the legal process, if a neighbour had an issue with it.

Our Draftsman consider heeble as masonary, so he reckons as long as it doesn't specifically say brick then we'd been OK with it too.

Thanks for your response! Great to know 👍

You really dont have much choice in the end. I had an email from Monash coucil even saying they cant enforce and yet Metricon refused to budge. Think the coucil they had problems with was Whitehorse. What they don't want is someone who lives in the subdivision, or a council trying to overstep its power by challenging it iwhich then halts everything whilst it goes to court. In the mean time costs keep going up for the builder and they start losing money. In the end I went full brick to not delay things which is also better than EPS foam and Hebel. At the end of the day, if you refuse to accept what the builder tells you they can cancel the whole contract on you. Unfortuantely you may have to eat humble pie if you want that particular builder

just for those arguing the terminology.

51% does not equal "substantially"
51% is the equivalent of a technical majority, but a technical majority doesn't qualify as a "substantial" in any metric when the other half could be substantially similar in size/volume.

Personally Id say to define one material over an other as "substantial" would mean one material would have to be proportionally over half in respect to the surfaces affected. 60% might be substantial on one project while others may need ~75% to be considered "substantial"

TLDR - 51% isn't "substantial". Its barely a majority of two halves.