When a Development Approval is Older than the Laws that Govern it

How a development application can outlast two planning Acts, and how Queensland’s transitional provisions and the Planning and Environment Court keep a long-running approval alive.

Some development applications are decided in months. A few take a generation. An application lodged in 2004 and not brought fully into effect until 2026 has to survive more than two decades of delay, the repeated extension of statutory time limits, and the replacement of the entire planning statute under which it began, not once but twice. That it can survive all of that and still produce a workable approval is a feature of the Queensland system that is easy to take for granted until a matter depends on it.

Queensland has rewritten its planning legislation twice in a generation. The Integrated Planning Act 1997 governed development from 1998. It gave way to the Sustainable Planning Act 2009, which in turn was replaced by the Planning Act 2016, in force since July 2017. Most development applications are lodged, decided and acted on comfortably within a single regime. Now and then, some do not.

The Planning and Environment Court’s decision in Pero-Joda Investments Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 39 shows how the system holds a long-running application together. It explains why a decades-old application does not simply lapse when the legislation under which it began is repealed, and how the Court’s powers were used to bring the resulting approval into effect under the law of the day.

Why the age of an approval matters

A development approval is a valuable asset. It can be the foundation for financing, for the sale of the underlying land, and for years of staged construction. But an approval is a creature of statute. It exists because a particular Act said it could, and its content, its currency and the rights of appeal attached to it are all defined by that Act.

That raises an obvious question whenever Parliament repeals one planning Act and replaces it with another. What happens to applications still moving through the system, and to approvals already granted, at the moment the old law disappears? If the answer were that they fall away, every change of legislation would destroy accrued rights and force applicants to start again. Parliament avoids that result through transitional provisions: the bridging rules, usually tucked into the final chapters of an Act, that carry existing applications, approvals and appeal rights across from the old regime into the new one.

A delay measured in decades is not a neutral thing. For the landowner it means years of holding costs, deferred returns, and uncertainty over whether the asset can be realised at all. It is one thing to read that an application took twenty years; it is another to carry the cost of it. That is part of why the mechanisms that keep a long-running application alive matter so much. Without them, the years of effort and expense would count for nothing.

An application that began under one Act and finished under another

The Pero-Joda matter concerned a proposal to reconfigure rural land at Kurwongbah, in the Moreton Bay region north of Brisbane. The development application was made in October 2004, during the life of the Integrated Planning Act 1997, and was assessed through that Act’s Integrated Development Assessment System, known as IDAS. It originally sought to create twenty lots. The configuration ultimately approved was seventeen.

It was not decided quickly. Over the years that followed, the decision-making period was extended again and again, and the application had to accommodate the requirements of several State agencies, overlapping planning schemes, and a series of technical issues ranging from vegetation and bushfire to traffic and the land’s listing on the Environmental Management Register. It reached the decision stage under IDAS but had not been decided when the Integrated Planning Act was repealed. It remained undecided through the entire life of the Sustainable Planning Act 2009 as well. By the time it was finally approved, subject to conditions, the Planning Act 2016 was the operative statute. The approval was then challenged on its conditions, which is how the matter came before the Court.

The result is an application that outlived not one but two planning Acts, and more than two decades, before it produced an approval.

How the transitional provisions carried it forward

The first bridge was from the Integrated Planning Act to the Sustainable Planning Act. When the 2009 Act repealed the 1997 Act, it did not abandon applications that were still in progress. Its transitional provisions preserved an application that had been made but not decided, allowing it to continue to be assessed and decided under the old Integrated Planning Act, and treating any approval that resulted as an approval under the new Act. Accrued appeal rights were preserved in the same way. The half-finished application simply kept going under the rules it had started with.

The second bridge, from the Sustainable Planning Act to the Planning Act 2016, was less tidy. The 2016 Act contains its own transitional provision for applications that were made but not decided when it commenced, but that provision is directed at applications made under the immediately preceding Act, the Sustainable Planning Act. The Pero-Joda application had been made earlier, under the Integrated Planning Act, so it did not fit neatly within that provision.

The gap was closed by a general rule of statutory interpretation rather than by the Planning Act itself. Section 20A of the Acts Interpretation Act 1954 provides that the repeal of an Act does not end the saving, transitional or validating effect of its provisions. In other words, the transitional rules in the Sustainable Planning Act continued to operate for this application even after the Sustainable Planning Act had itself been repealed. Their work was not finished, so their effect survived. On that basis, the application remained one to be assessed and decided under the Integrated Planning Act, and the appeal remained a valid conditions appeal. That was the essence of what the Court confirmed in Pero-Joda [2024] QPEC 39.

Bringing the approval into effect under the current Act

Confirming which Act governs the assessment is only part of the story. A more practical problem follows. An application made under the Integrated Planning Act, but finalised while the Planning Act 2016 is in force, effectively bypasses the middle Act altogether. For the resulting approval to be of any real use, the rights and obligations it carries need to be capable of being exercised and enforced under the current law. An approval that lives only in a repealed statute is of little comfort to a landowner, a financier or a certifier.

The Planning Act anticipates this. It carries forward approvals that were in effect when the Sustainable Planning Act was repealed and treats them, going forward, as if they had been made under the Planning Act. For an ordinary approval the transition is automatic. For an approval with an unusual history like this one, where the path runs directly from the oldest Act to the newest, it is prudent to put the position beyond argument rather than leave it to be worked out later.

This is where the Court’s powers matter. The Planning and Environment Court has long held a broad declaratory jurisdiction, originating in the Integrated Planning Act and carried forward through each successive statute. It allows the Court to make binding declarations about the lawfulness and effect of an approval, and to make the consequential orders needed to give those declarations practical force. That is the course followed here. In August 2026, on the conclusion of the appeal, and with the conditions ultimately resolved by agreement between the parties, the Court made final orders bringing the approval into effect as a development approval under the Planning Act 2016. The result is to lift a decades-old approval cleanly into the modern regime, so that its currency period, its conditions and the means of enforcing them all operate under the law that everyone is now working with.

That is how an approval can be older than the laws that govern it and still be brought fully into effect. The transitional provisions preserve it, the Acts Interpretation Act keeps those provisions working after their parent Act and further transitional legislation are gone, and the Court’s declaratory power confirms the approval’s place in the current system.

Practical points for developers and landowners

First, a development application or approval is not automatically lost when the planning legislation changes. Transitional provisions are designed to preserve rights that have already accrued, although the analysis can be intricate and is easy to get wrong.

Second, the longer and more convoluted an approval’s history, the more important it is to establish, early and clearly, which Act governs the assessment, the appeal rights and the currency of the approval. Those questions can determine whether a project is on solid ground or exposed.

Third, where a history straddles several regimes, it can be worth seeking the Court’s confirmation that the approval is effective under the current Act. That certainty is valuable when it comes to raising finance, sealing plans of subdivision and enforcing conditions, and it is far cheaper to obtain than to litigate after a problem emerges.

Fourth, do not assume that a long-delayed or seemingly dormant application is beyond saving. An application that has sat unresolved across two changes of legislation, and across many years, can still be brought to a workable approval with the right analysis and, where needed, the Court’s assistance. The lesson of a matter like this is not that the system is quick, but that a properly founded application need not be abandoned merely because it has taken a very long time.

A development approval that began under a statute repealed two Acts ago can still be made to work today. It takes a careful reading of the transitional provisions and, in the right case, the Court’s assistance to confirm the result.