On 7 October 2026, the South Australian Government released its discussion paper on reforming off-the-plan residential land sales in South Australia.

Policy intent

The purpose of the discussion is to receive feedback on reforms to the Land and Business (Sale and Conveyancing) Act 1994 (SA) (LABSAC Act) ‘to provide stronger protections for consumers purchasing residential land off-the-plan’.¹

Currently, South Australia does not have a ‘dedicated legislative framework’² regulating off-the-plan residential contracts but purchasers do benefit from protections under the LABSAC Act in relation to the vendor’s statement (Form 1) and cooling-off rights. In addition, purchasers also benefit from general consumer protection laws, including the prohibitions on misleading or deceptive conduct and unconscionable conduct under the Australian Consumer Law, together with common law remedies for breach of contract.

This move to regulate off-the-plan residential contracts would shift South Australia into alignment with Queensland, NSW, the ACT and Victoria, which have all implemented statutory regimes for developer rescission under a sunset clause.

The discussion paper seeks feedback on increasing ‘transparency and safeguards’³ for purchasers when entering into off-the-plan residential land sales, which are inherently complex given the lot purchased does not yet exist. Specifically, the South Australian Government has proposed reform in three key areas:

1. ‘Regulating the use of sunset clauses and other contractual rescission rights;
2. Enhancing vendor disclosure obligations throughout the life of a project; and
3. Introducing a statutory right for purchasers to rescind contracts where material changes are made to a development’.⁴

Why now?

Reform in the South Australian off-the-plan residential land space is unsurprising. Notwithstanding such reforms occurring in Australia’s eastern states in the past decade, the South Australian Government revealed its concerns in October 2024 that developers were intentionally delaying construction to cancel contracts under a sunset clause and sell the land at a higher price.⁵

Proposal

The South Australian Government has proposed the following protections:

1. The requirement for purchaser consent or court or tribunal approval for a vendor to rescind a contract under a sunset clause. The court or tribunal must consider (amongst others):
   1. vendor conduct;
   2. reasons for project delays; and
   3. increases in market value.
2. New disclosure regime, where vendors must make disclosures about:
   1. planning, environment and infrastructure approvals;
   2. financing dependencies and project contingencies;
   3. staging arrangements;
   4. utility servicing arrangements;
   5. third-party approvals; and
   6. other material risks that may affect project delivery.
3. A statutory right for purchasers to rescind off-the-plan contracts where vendors make a material change to the development after the contract has been entered into. Such material changes may include:
   1. alterations to lot boundaries, design or specifications;
   2. changes affecting common property or shared facilities;
   3. amendments to by-laws; and
   4. the introduction of easements, covenants or restrictions that adversely affect the property.
4. A mandatory notice period of 21 days for the vendor to notify the purchaser of material changes.

Practical impact

Costs

Where a purchaser does not consent to the rescission of an off-the-plan contract under the sunset clause, the vendor can apply for a court order. In Queensland, NSW, the ACT and Victoria, such an application must be made in the Supreme Court of the respective jurisdiction. Amongst others, the Court places an emphasis on financial aspects, where ‘an increase in value often works against the vendor’s application’ as a primary goal of the legislation is to prevent ‘developers from rescinding contracts simply to resell at a higher price for financial gain’.⁶

Developers managing numerous large-scale projects with many purchasers face high litigation costs to contest contract rescission. For example, in NSW, ‘section 66ZL(8) of the Conveyancing Act 1919 (NSW)⁷ stipulates that the vendor is generally liable for the purchaser’s legal costs associated with the court proceedings’ unless the Court is satisfied ‘that the purchaser unreasonably withheld their consent to the rescission’.⁸ Should the South Australian reforms mimic NSW, developers must consider the cost-benefit to applying to the Court.

Complexity and accountability

The proposed reforms would introduce an enhanced disclosure regime, with ongoing obligations to notify purchasers of material changes during the life of a project. Consequently, developers must be prepared to manage continuing compliance obligations for every contract in a project, across many purchasers over a multi-year construction and registration timeline.

This compliance burden will likely have structural, not just procedural, consequences for vendors. Developers that currently manage disclosure from a point-in-time, pre-contract exercise may need to reconsider this model, given its new ongoing obligation to monitor and notify each material change across a project’s life span. Practically, this may mean developers will need to centralise disclosure processes and resource legal and conveyancing teams to achieve compliance.

Commercial freedom

Commercial flexibility is essential to off-the-plan residential contracts, for example, for developers to receive planning authority approvals and adapt to changing supply chains, labour resources and economic conditions. The narrowing of such freedom through statutory regulation risks developers losing the ability to negotiate freely and initiate large-scale housing projects. Such legislative influence may result in an industry practice to use standard forms of contract for off-the-plan land.

What about existing statutory protections?

A further question raised by the discussion paper is whether the proposed reforms are necessary at all, given purchasers already benefit from a range of existing legal protections.

The key issue for consideration is whether the current legal framework already provides an appropriate level of protection for off-the-plan purchasers and whether the introduction of a bespoke statutory regime is justified. Existing laws already impose significant obligations on developers and vendors, including the prohibitions against misleading or deceptive conduct, unconscionable conduct and unfair contractual practices under the Australian Consumer Law, together with a range of remedies available at common law and in equity. These protections are broad in scope and capable of addressing many of the concerns identified in the discussion paper.

Against that background, careful consideration should be given to whether the proposed reforms would deliver meaningful additional consumer benefits or merely duplicate protections that already exist. Regulatory overlap can create uncertainty, increase compliance costs and generate additional complexity for developers, financiers and advisers without necessarily improving outcomes for purchasers. Multiple and overlapping causes of action may also increase the likelihood of disputes and make it more difficult for market participants to determine with confidence the standards by which their conduct will be assessed.

Ultimately, the discussion paper presents an opportunity to assess whether the perceived issues in the off-the-plan sales market arise from deficiencies in the existing legal framework or from isolated instances of misconduct that can already be addressed through existing laws. If the latter is the case, more targeted reforms or enhanced enforcement of existing protections may represent a more proportionate response than the introduction of an additional regulatory regime.

Potential unintended consequences

Care should be taken to ensure that any reforms are appropriately targeted and do not extend protections beyond those purchasers who genuinely require them. In particular, sophisticated purchasers, commercial developers and institutional investors should not necessarily benefit from consumer-style protections designed principally to address information asymmetry and bargaining power imbalances affecting ordinary residential purchasers.

For example, land that carries a residential zoning or land use designation should not automatically attract statutory protections where it is being acquired for a scalable development project or by a purchaser who is demonstrably sophisticated by reference to balance sheet strength, income capacity, investment experience or the nature and scale of the acquisition. Consideration could also be given to adopting exclusions similar to those found in the LABSAC Act for transactions that are not characteristic of a typical residential purchase. In such circumstances, parties should generally be free to allocate risk and negotiate commercial outcomes without unnecessary statutory intervention.

Not all off-the-plan purchasers occupy the same position. A first home buyer purchasing a single dwelling for owner-occupation is in a materially different bargaining position to a sophisticated investor acquiring multiple lots, a family office pursuing a large-scale investment strategy, or a purchaser who has obtained comprehensive legal, financial and tax advice. Treating these purchasers identically may result in a regulatory regime that is both over-inclusive and under-inclusive.

A blanket approach risks imposing significant additional compliance costs, delays and administrative burdens on developers in circumstances where the purchaser faces little practical risk and has ample capacity to protect its own interests. These costs are unlikely to be absorbed by developers alone and may ultimately be passed through to purchasers in the form of higher prices, reduced housing supply or more conservative project delivery models. At the same time, uniform protections may fail to adequately address the circumstances of genuinely vulnerable purchasers whose needs could be better served through more targeted measures.

The interstate regimes upon which the proposed South Australian reforms are likely to be modelled generally do not distinguish between purchaser classes. However, the South Australian review process presents an opportunity to consider a more nuanced framework. For example, disclosure obligations, cooling-off rights and rescission remedies could be calibrated by reference to factors such as purchaser sophistication, the number of lots acquired, the value of the transaction, the size of the deposit paid, or whether the purchaser has obtained independent professional advice. Such an approach would better balance purchaser protection with commercial efficiency and reduce the risk of introducing regulatory burdens that outweigh their intended benefits.

More broadly, reforms that fail to differentiate between consumer and commercial transactions risk discouraging investment, increasing project costs and reducing flexibility in the structuring of off-the-plan developments, ultimately undermining the housing supply outcomes that governments are seeking to promote.

Concluding remarks

The tabling of legislation in South Australia in 2026 regarding off-the-plan residential land is highly probable. Reform will likely bring South Australia into alignment with the eastern states. Accordingly, legislative changes regarding sunset clauses may apply retrospectively to existing, unsettled contracts. Developers will be required to become more equipped at thorough disclosure, managing delays, setting realistic sunset dates and court applications.

For more information, or to provide feedback to the discussion paper, please refer to the YourSAy website here.

HWLE is well placed to assist developers in preparing submissions to YourSAy. We can help developers identify, articulate and substantiate the issues that matter most to their business.

This article was written by Adam Rinaldi, Partner, Michael De Palma, Senior Associate, George Komninos, Associate, and Madeline Playford, Law Graduate.

¹ South Australian Government, Consumer and Business Services, Reforming Off-the-Plan Residential Land Sales in South Australia (Web Page) <https://yoursay.sa.gov.au/off-the-plan-residential-land-sales-sa>.
² Consumer and Business Services (Government of South Australia), Reforming Off-the-Plan Residential Land Sales in South Australia (Discussion Paper, 2026) 8.
³ Ibid 6.
⁴ Ibid 7.
⁵ Consumer and Business Services (Government of South Australia), ‘New protections proposed for South Australian home buyers’ (Media Release, 23 October 2024).
⁶ Ramia Sultan, ‘Off-The-Plan Contract Sunset Clauses in NSW Explained’ (Web Page, 1 April 2025) <https://lawbridge.com.au/insights/sunset-clauses-off-plan-contracts-nsw/>.
⁷ Conveyancing Act 1919 (NSW) s 66ZL(8).
⁸ Sultan (n 6).