Owner's Consent for Someone Else's Application: What to Settle Before You Sign

Owner's Consent for Someone Else's Application: What to Settle Before You Sign

General information for South Australian landowners only. This is not legal, conveyancing, planning or financial advice. Send the wording of any consent, contract or option document to your own solicitor; send anything that would be noted against your certificate of title to your solicitor or conveyancer; and send questions about the assessment pathway, notification and the merits of the scheme itself to your own planning consultant.

A buyer — a developer, or a builder with your site under offer — has asked you to sign owner's consent so they can lodge a development application on land you still hold, with settlement conditional on the approval. The argument sounds reasonable: they carry the cost and the risk, you carry no obligation, and if the application succeeds the contract proceeds.

The decision in front of you is not really whether the application may exist. It is who runs it. Whoever is named as the applicant is the party the process deals with: it is their scheme that is lodged, their decision what to concede during assessment, and their decision whether to contest a refusal or a condition — subject to whatever your contract, your consent and your title already constrain. It also sets the tone of the first conversation your neighbours ever have about your land. You are being asked to hand over the planning history of a property that is still yours, at the one moment you hold leverage — which is why the consent belongs in the negotiation alongside price and timing, not in the paperwork after it.

Why your signature carries more weight than it used to

For years the position in South Australia was that a person could apply for development authorisation over land whether or not they owned it: "section 119(13) allowed a person to apply for development authorisation on land regardless of whether they were the owner or occupier of the land, or if they had the landowner's consent," as Norman Waterhouse puts it. Following the amendments made by the Statutes Amendment (Planning, Infrastructure and Other Matters) Act 2025, the firm sets out the replacement subsection — an application "cannot be made by a person who is not the owner of the land constituting the site of the proposed development" unless the owner has consented, or the applicant is a prescribed person or body or of a prescribed class, or the application is of a prescribed class or made in prescribed circumstances — and adds that "There are currently no prescribed classes or circumstances" (source: Norman Waterhouse — Amendments to the Planning, Development and Infrastructure Act 2016 (SA)).

That commentary is careful about commencement: the majority of the relevant amendments have commenced by proclamation, and it separately flags two provisions that have not. Whether the consent requirement applies to the application your buyer proposes to lodge, on the day they lodge it, is for your own planning consultant or solicitor to confirm against the current Act.

Where that subsection applies, a signature that was once a courtesy is the gate: the application cannot be made without the owner's consent unless the applicant falls within one of the exceptions the section sets out. Whether a particular buyer's proposed application sits inside or outside those exceptions is what your solicitor or planning consultant checks against the Act as it stands on the day. Where it does apply, the buyer must obtain the consent before lodgement — the moment at which the commercial terms are still open.

Consent to lodge is not consent to the scheme

Three separate things get bundled together here, and they are worth pulling apart on paper.

The consent is your permission for a named person to make an application over your land. The contract or option is the commercial deal — what is paid, when, and on what conditions. The approval is a decision of the relevant authority, not of you or the buyer; planning consent, land division consent and building consent are separate decisions, and development approval is what follows once the required consents are in place.

These conversations go wrong when a consent drafted on the buyer's side is presented as though it were merely the paperwork of the commercial deal, and signed as though it were. The consent is a separate document with its own scope and its own life, and it is read by the relevant authority, not by the parties to the contract. If a consent names "a development application" but describes no proposal, ask your solicitor what, if anything, confines it. If it carries no end date, ask what ends it. If the commercial deal is being documented as an option, how the option's exercise mechanics interact with the consent's life is a drafting question for your solicitor — our guide to call option agreements over land in SA covers the option side of that structure.

Who holds the procedural levers

The asymmetry that surprises owners most is not complete: not every route runs through the applicant.

On merits appeals to the Environment, Resources and Development Court, the SA Law Handbook sets out that an applicant has a right to appeal against a refusal to grant development approval or against any conditions attached to it, and that "an applicant also has a right of appeal against any other assessment, request, decision, direction or act of a relevant authority under the Act in relation to the development authorisation". Third parties — persons other than the applicant or the relevant authority — may appeal only if they made a written representation on a proposed impact assessed (restricted) development (source: SA Law Handbook — Merits appeals).

The same page describes a separate route that does not follow the applicant. Where it appears a relevant authority has mis-categorised a development, "a person who is an owner or occupier of land on or adjoining the site of the proposed development can institute proceedings in the Environment Resources and Development Court to have the issue of categorisation determined". The Handbook's planning and development page states the same right in the same terms: an owner or occupier of a development site, or adjacent land, who can demonstrate a relevant interest in the matter can appeal as to the nature (categorisation) of the development (source: SA Law Handbook — Planning and Development). That is a right about how a proposal is categorised, not about the merits of the scheme, and whether it is open on your facts is for your own planning consultant and solicitor. Both Handbook pages were last revised in 2021 and the Act has since been amended, so have the current position confirmed before relying on either.

The same page names two further avenues that do not belong to the applicant. On civil enforcement it records that section 214(1) provides "Any person may apply to the Court for an order to remedy or restrain a breach of this Act or the repealed Act", while adding that this "is not an appropriate form of action to complain about the relevant authority's decision-making process or any mistakes made", that a limitation period applies, and that the procedure is complicated and legal advice should be sought. On judicial review it records that it "can be used to challenge a development approval if it can be shown that proper processes have not been followed (eg. where a relevant authority fails to properly advertise a development application)", usually in the Supreme Court rather than the ERD Court, with a typical outcome being an order that the authority remedy irregularities in its process rather than a decision on the merits. Neither goes to the merits of the scheme, and whether either is open on your facts is a question for your own solicitor (source: SA Law Handbook — Planning and Development).

Outside those routes, the shape is clear: the rights to contest a refusal and to contest conditions attach to the applicant. If your buyer is the applicant, the decision whether to appeal a refusal sits with them, as does the decision whether to contest conditions you would never have accepted — unless your agreement with them says otherwise, which is exactly what makes it worth saying so in the agreement — on land that is still yours. If they lose interest, the file simply stops.

None of that is a reason to refuse consent. It is a reason to negotiate who is named, and what you are entitled to when the applicant's interests and yours stop pointing the same way. Ask whether you can be a co-applicant, and to receive every piece of correspondence with the relevant authority when they do. Ask what happens if they decline to appeal a refusal you would have fought — our note on what to do when a DA is refused sets out the paths that then exist.

What public notification spends

Not every application is advertised; the pathway determines it. The SA Law Handbook lists the categories with no public notification or consultation requirements — exempt, accepted, code assessed deemed-to-satisfy, and performance assessed development in the no-notification class — and describes what happens where notification is required: affected neighbours or owners within a set distance of the site are notified by letter or confirmed email address, and the general public by a sign placed on the relevant land. Restricted development carries wider notification again, including publication on the SA Planning Portal (source: SA Law Handbook — Planning and Development). That page was last revised in 2021, so the current requirements are worth confirming too.

Which of those applies to a given proposal is determined by the relevant authority against the Planning and Design Code, and reading where a scheme is likely to land in advance is what your planning consultant is for; the distinction is explained in our guide to deemed-to-satisfy versus performance assessed.

Where notification occurs, what has been published cannot be unpublished: a scheme the owner did not design, and may never build, is what the street has been shown of the land's future. If the deal later collapses and you come back with your own, smaller proposal, you come back to a street that has already formed a view. That cost lands on the land whichever way the assessment goes — whether the buyer walks away, the relevant authority refuses, or a referral takes longer than the contract allowed.

What to check survives if nothing settles

Ask what is left behind if nothing completes.

Conditions. A consent, if granted, carries whatever conditions the relevant authority attached to it, and those conditions sit on the authorisation rather than on the person who applied for it. What that means for whoever holds the land afterwards is a question for your solicitor; the practical step is to require a copy of every decision notice and condition as it issues, not at settlement.

Instruments noted against your title. A Land Management Agreement "relates to the development, management, preservation, or conservation of land, between the owner of the land and a Minister or the relevant council", and copies of individual agreements are obtained through the certificate of title on SAILIS (source: data.sa.gov.au — Land Management Agreements). What an LMA requires of whoever holds the land after it is noted is a title question — put it to your conveyancer or solicitor before you agree that the applicant may enter into one. Our guide to encumbrances and land management agreements in SA divisions covers the family of instruments to have checked.

The record. Where a proposal has been notified, the neighbours who got the letter and saw the sign do not unsee it.

A clock. Development authorisations lapse. Norman Waterhouse, reporting the lapse-of-consent variation regulations — made under the Development Act 1993, with an equivalent change made for the Planning, Development and Infrastructure Act 2016 — records that an authorisation which had already lapsed when those regulations took effect remains lapsed and is not able to take advantage of the extended timeframes, "unless the relevant authority or a Court exercises its discretion to extend it" (source: Norman Waterhouse — New timeframes for the lapse of development authorisations). That commentary states the periods as they were set then; confirm the lapse period applying to any authorisation in question with your planning consultant. The principle is what matters here: an approval obtained by someone else has a life, and extending an expired one is a discretion of the relevant authority or the Court, not something you or your buyer can elect. How much life is left in one is what any later buyer looks at — the subject of selling a block with DA approval.

What to settle before you sign

None of this is a checklist of what your consent should say; that is drafting, and it belongs to your solicitor. It is what to decide before the drafting starts.

Decide what the consent is for: a described proposal at a described scale, or anything at all. Decide when it ends: on a date, on termination of the contract, or never. Decide whether a variation needs your written approval, who pays the application fees and consultant costs, and who owns the drawings, surveys and reports if the deal fails. Whether the applicant withdraws a live application if the contract ends, whether anything noted against your title needs your prior approval, and what access comes with the consent.

Then answer the three questions no general guide can answer for you. What is your position if this buyer walks — sell to someone else, hold, or develop yourself? Is the scheme they intend to lodge one you would ever have built, or is it designed for their business rather than your land? And how much of the neighbour relationship are you prepared to spend on someone else's proposal?

Where a development manager fits

An owner-side development manager does not approve anything, value anything or advise on the law. What we do is sequence the people who do: your solicitor onto the consent wording before it is presented as a formality, your planning consultant onto the pathway before the application is framed, and the commercial deal and the consent negotiated as one conversation, not two.

The buyer's request is not unreasonable. Their timing is deliberate. Match it.