Outline Consent: Asking One Question Before the Rest of the Design Exists

Outline Consent: Asking One Question Before the Rest of the Design Exists

General information for South Australian landowners only. This is not legal, conveyancing, planning or financial advice, and nothing here is an opinion about your site. Route eligibility, which aspects are worth nominating and how a proposal would be assessed to a qualified planning consultant; notification, representations and appeal rights to an SA planning and administrative law lawyer; option agreements, owner's consent and anything touching title to an SA property lawyer or conveyancer; and process, forms and fees to PlanSA and the State Assessment Team. Practice directions are amended from time to time — confirm the current version before you rely on anything here.

The decision, before the definition

You are holding a site where one thing is genuinely in doubt. Not the whole scheme — one thing. Whether the height you need is achievable. Whether the density your numbers rely on survives assessment. Whether a use the policy does not obviously support can be argued at all.

Everything downstream is hostage to that one answer: consultant drawings, engineering, a builder's input, sometimes the decision to buy the land at all. The ordinary way to get the answer is to finish the design and lodge — paying for the whole package to find out about one part of it.

Outline consent is a way of asking that question earlier and on its own. It is not a shortcut, and the eligibility rules are narrow. Whether it is open on your facts is determined by the relevant authority against the current practice direction, and it is what your planning consultant is for. What it turns on is a set of facts no general answer can know: who decides your application, whether you control the land yet, and what somebody else would do with early notice of your idea. Below is what those facts are, so you can go and check them.

What outline consent is

Section 120 of the Planning, Development and Infrastructure Act 2016 provides that "a relevant authority may, on application, grant a consent in the nature of an outline consent", in "circumstances specified by a practice direction" (source: Planning, Development and Infrastructure Act 2016). That practice direction is Practice Direction 18, under which the Commission "must be the relevant authority for the purposes of granting outline consent" (source: Practice Direction 18 — Outline Consent). PlanSA states the purpose plainly: an outline consent "may be used to provide greater certainty to an applicant regarding specific aspects of a proposed development at an earlier stage, without having to provide the same level or extent of information required to obtain planning consent" (source: PlanSA — Outline consent).

The binding effect is the point of the exercise. Under section 120, where an outline consent is granted and a subsequent application is made for the same development, a relevant authority "must grant any consent contemplated by the outline consent" and "must not impose a requirement that is inconsistent with the outline consent" (source: Planning, Development and Infrastructure Act 2016).

That is real certainty, and it is narrow certainty.

Question one: is the Commission the authority here?

This is where most owners stop, and it is cheap to check first. Practice Direction 18 sets the circumstances. The aspects proposed must be such that, if they formed part of an application for planning consent, the development "would be assessed as 'Code Assessed Development — Performance Assessed Development'". Beyond that, the pathway is open where the Minister has called the development in for assessment by the Commission, where the Minister has declared at a council's request that the Commission is desired to act as the relevant authority, or where the Commission would be the relevant authority under the listed clauses of Schedule 6 of the Regulations (source: Practice Direction 18 — Outline Consent).

Those Schedule 6 clauses are specific: South Australian Housing Trust and urban renewal development, development in the City of Adelaide above a stated value, buildings above a stated number of storeys in the inner metropolitan area and in certain named council areas, and development above a stated value within identified areas of two named councils. Most suburban infill sites, rural divisions and small townhouse projects sit outside those Schedule 6 clauses. That does not close the question by itself — the call-in and Ministerial-declaration routes above are not tied to those clauses — but it does make eligibility the first thing to put to your planning consultant, before any work is done on the idea. Where the pathway is not open, the route is the ordinary one — see the SA development approval process.

Two warnings. The applicant's guide summarising the pathway carries an earlier version date than the current practice direction, and its summary table does not list every clause the current version does (source: PlanSA — Guide for Relevant Authorities and Applicants: Outline Consent) — so read the practice direction, not a summary of an older one. And where eligibility depends on a Ministerial notice, the practice direction provides that the application lapses if that notice is not served within the period it specifies. Your planning consultant should be advising you on both.

Question two: which aspects, and what stays open

Practice Direction 18 limits an outline consent to nominated aspects: building height, bulk and scale; building envelope; access; land use; density; open space; and any other aspect agreed between applicant and relevant authority that is necessary to determine the application, "such as tree damaging activity, or demolition of a heritage place" (source: Practice Direction 18 — Outline Consent).

Note what is not on that list. The practice direction states that an outline consent "may only contemplate the granting of a subsequent planning consent". Land division consent and building consent are separate decisions, and development approval is what follows once the required consents are in place. So an outline consent settles nothing about a division, nothing about the Building Code, and does not by itself let you start work.

Nor is the certainty unconditional. Under the Act, where "there has been a material change to 1 or more elements of the development", or a new or additional matter requires assessment, the binding effect does not apply to the extent a new assessment must be made (source: Planning, Development and Infrastructure Act 2016). PlanSA's guide puts the same point in practical terms: where the later planning application "is not consistent with the outline consent, a relevant authority is not bound to recognise the outline consent approval and the planning consent application will be assessed in its entirety" (source: PlanSA — Guide for Relevant Authorities and Applicants: Outline Consent).

Two further limits sit in the practice direction itself. Where the relevant authority cannot determine the outline consent application separately from a matter that will require planning consent, it may refuse it and advise that an application for planning consent be lodged instead; and an outline consent must not be granted where an aspect, or the application as a whole, is in the relevant authority's opinion seriously at variance with the Planning Rules (source: Practice Direction 18 — Outline Consent).

Read all of that as a design constraint. You are asking about the version of the idea you nominated; drift far from it and you have bought a document, not an answer.

Question three: what does early notice cost you?

Practice Direction 18 provides that if a subsequent application would be required to be publicly notified under section 107(3) of the Act in relation to any aspect being assessed, "the application for outline consent must be publicly notified in the same manner", and that where a subsequent application would require referral to a prescribed body, the outline consent application must be referred in the same manner (source: Practice Direction 18 — Outline Consent). Under section 107(3), notice goes to an owner or occupier of each piece of adjacent land and to the public by notice placed on the land, and a person may make representations to the relevant authority about the granting or refusal of consent (source: Planning, Development and Infrastructure Act 2016).

That notice is public, and so is the record of it. PlanSA states that "[a]n application for outline consent is publicly notified in the same manner as a performance assessed application" and that any interested person can have a say within the notice period (source: PlanSA — Notified developments: state developments). The guide adds that an outline consent application "will be recorded on the public register and, if notified, accessible on the SA Planning Portal" (source: PlanSA — Guide for Relevant Authorities and Applicants: Outline Consent). How many outline consents are on notice at any one time is not the point — the point is that yours would be, and that it would be findable afterwards.

So the question is not "do I mind notification". It is: what happens if the intention becomes public before the design is finished and before I have secured what I still need to secure? Is there a neighbour who would treat an unfinished proposal as easier to argue against than a resolved one? A competing purchaser watching the site? A vendor whose price expectations move the day a height is published? A co-owner, tenant or lender who would learn it from a public notice rather than from you? Those are facts about your position, and they are why two owners with similar sites can reasonably reach opposite answers. No general answer can weigh them for you.

Review and appeal rights under the Act are not framed the same way for everyone. The Act gives "a person who has applied for a development authorisation" rights of review or appeal "in respect of a prescribed matter", and separately gives a person entitled to notice of a decision under section 110(6) a right of appeal "in respect of development classified as restricted development by the Planning and Design Code" (source: Planning, Development and Infrastructure Act 2016). Which of those rights attach to an outline consent application on your site, and to a decision on it, is a question to put to an SA planning and administrative law lawyer before you lodge.

Question four: do you control the site yet?

The guide states that anyone can apply for an outline consent, subject to the eligibility limits above. That is why the pathway attracts a purchaser who wants an answer before committing to the land — and why it needs legal advice first.

If you are working under an option rather than a completed purchase, ask your property lawyer how the application, the option terms and the vendor's position interact, and what they want settled before anything is lodged — see what a call option agreement over land does. If the applicant is not the registered proprietor, the owner's position in the application is its own question — see owner's consent when someone else lodges the application. An application that becomes public while your control of the site is still conditional puts the exposure and the control question in the same window, which is why the two are worth settling together rather than in sequence.

The Code Amendment case

One situation makes the timing argument strongest. Practice Direction 18 allows an outline consent to be assessed against the Planning Rules together with a "relevant amendment" — a proposed Code Amendment that has been initiated and on which consultation has commenced. It also provides that an outline consent must not be granted in that case unless the amendment is adopted by the Minister, and that the application lapses if the Minister determines not to proceed with it (source: Practice Direction 18 — Outline Consent).

For a landowner running a Code Amendment, that is the difference between waiting for policy and having an assessment run alongside it, and the two processes have to be sequenced deliberately. If that is your situation, start with how rezoning through a Code Amendment works, and remember that a Code Amendment does not itself grant development approval.

Practical mechanics before you ask

The guide records that applications were, when it was published, unable to be submitted online through the Development Application Processing system and are lodged with the Commission by email or post, and that preliminary discussions can be had through the Commission's free and confidential pre-lodgement service. On fees, it states that they are set by a Ministerial fee notice and that the assessment fee "is a statutory amount and not relative to development cost" (source: PlanSA — Guide for Relevant Authorities and Applicants: Outline Consent). For the fee landscape generally, see our SA development application and land division fees guide; PlanSA is the authority on what your application is invoiced.

Practice Direction 18 also specifies an operative period, provides that lodging a subsequent application within it changes when the consent lapses, and allows the authority that granted it to extend it. Take the periods from the current version and build your programme around them.

How to reach an answer

Outline consent is built for an owner whose position lines up on all of the following: the Commission is the relevant authority; one identifiable aspect is genuinely in doubt and worth more than the rest of the design; that aspect can be described well enough to be assessed on its own; the later application would stay close enough to the outline consent to keep its benefit; and publishing the idea early costs less than finding out late.

Where an owner cannot line up all of those, the ordinary path is usually the one that gets used. Whether the second-last of them holds — whether the proposal is stable enough that the later application would not read as a material change — is a judgement for your planning consultant, not a self-assessment. That is why this stays a specialist instrument rather than a general one.

Cyberate PM works on the owner's side of that decision. We do not assess, approve or advise on planning law. We coordinate — getting your planning consultant's eligibility view and your lawyer's advice on control of the site into the same room before anything is lodged.