Deemed-refusal drift: nine-figure projects decided by the court, not the council residents elected

On the Land and Environment Court's file, two appeals sit under the numbers 2024/71549 and 2024/71554. They concern a A$57.4 million residential project on Curlewis Street, Bondi. The applicant is the developer Clutch. The respondent is Waverley Council.

The council did not determine the development application inside the time the law allows. So the applicant was entitled to treat that silence as a refusal, and to ask the court to decide instead. This is a lawful, statewide tactic. In Waverley, a run of large eastern-suburbs projects has taken the same path, and the pattern is what is worth watching.

Figures below are as at the source dates shown; court matters are as at their decision dates.

01The clock, not the merits

NSW planning law gives a council a set period to determine a development application ⁴. If that period passes with no decision, the applicant is entitled to treat the application as if it had been refused ⁴. This is a deemed refusal. It is a technical event triggered by time, not a judgment on the proposal. It does not mean the council said no. It means the council did not say anything inside the statutory window.

Once a deemed refusal exists, the applicant can appeal to the Land and Environment Court. The court then re-exercises the council's own function. It weighs the proposal on the planning merits and, in effect, stands in the council's shoes. The elected body, and the residents who elected it, are no longer the ones holding the pen.

Ordinarily a large residential application in this part of Sydney is settled either by the elected council or, above certain thresholds, by a panel such as the Sydney Eastern City Planning Panel, working within state policy including the Housing SEPP. A deemed refusal routes the same decision to a court instead. This is the shape THE RORT files under The Democratic Bypass: a lawful pathway by which a decision residents expect their representatives to make is made somewhere else.

A deemed refusal is not the council saying no. It is the council not saying anything in time.

Update, 7 October 2026. The deemed-refusal rule in the opening paragraph is now cited to its source: section 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) and the assessment periods in the Environmental Planning and Assessment Regulation 2021, 40 days for most development applications and 60 days for designated, integrated and concurrence development ⁴.

02The Waverley run

The Curlewis Street matter is not isolated. Several substantial eastern-suburbs projects have reached the Land and Environment Court on Waverley's failure to decide within time.

Two further matters round out the picture, and both are already resolved. NB Capital's DA-455/2025 was decided on 12 May 2026 by conciliation, reported as [2026] NSWLEC 1268. It is a closed file, not an ongoing dispute. And Hanave v Waverley, [2025] NSWLEC 19, sits in the same class of proceeding. In each case the applicant is named as what it is: a party to public proceedings that it was lawfully entitled to bring.

None of this is a finding against anyone. There are no misconduct findings here, and lodging a deemed-refusal appeal is not wrongdoing. What the file records is a mechanism working exactly as the statute permits, repeatedly, in one council area.

03Who gains, who pays

The applicant gains a decision. When the council clock runs out, an applicant who might otherwise have faced conditions, negotiation, or refusal can instead put the proposal to a court that assesses it on the merits. Consent obtained this way is as valid as consent granted across the council chamber.

What the elected council loses is leverage. The window in which councillors and officers can shape a project, extract public benefit through a voluntary planning agreement, seek a land reclassification, or refuse outright, is the window that closes when the application is not determined in time. Once the matter is before the court, the council's role narrows to arguing its position as one party among others.

And there is a bill. Under the Land and Environment Court Rules, the Court is not to order payment of costs in Class 1 development appeals unless it considers an order for the whole or any part of the costs fair and reasonable in the circumstances, so the default is that each side carries its own costs. ⁵ This is a structural feature of the pathway, not a penalty for any particular decision.

The window to negotiate, condition, or refuse is the same window that closes when the clock runs out.

Correction, 8 October 2026. This section said the council's defence 'is funded by ratepayers, whether the outcome favours the council or not'. No source we read says how the council pays for its defence, so the claim is cut here and in the figure, as it was earlier from the brief. The section now says only what the Land and Environment Court's published guidance carries: under rule 3.7 of the Land and Environment Court Rules 2007 the Court is not to order costs in Class 1 cases unless it considers that fair and reasonable, so the default is that each side carries its own costs. ⁵

04A capacity story, not a conspiracy

It matters what this is and what it is not. This is a missed-statutory-timeframe story. A council that does not determine an application in time is not a council that deliberately loses cases, and nothing in the public record supports that reading. Determination windows are tight, complex eastern-suburbs applications are dense, and a backlog is a question of capacity and workload, not intent.

It also matters that the tactic is ordinary. Deemed-refusal appeals are used across NSW, by applicants of every size, wherever a statutory window lapses. Waverley is not unique in facing them. What is worth documenting is the concentration: a cluster of nine-figure and multi-million-dollar projects in one small, high-value council area, each decided by the court rather than by the body residents elected.

THE PATCH will keep the Waverley file open, and watch the neighbouring registers in Randwick City Council and beyond, because the pattern, not any single matter, is the thing. When enough decisions drift out of the council chamber and into the courtroom, the drift itself becomes the story.

If it's a rort, we cover it.