Protesters are celebrating another victory in their bid to stop 52 homes from being built on an orchard - but the battle isn’t over yet.

Residents in East Malling were incensed when the chief planner at Tonbridge and Malling council, James Bailey, used his special constitutional powers to prevent councillors rejecting the scheme at Ivy Farm, in Wateringbury Road, in January.

Although the planning committee voted then by eight votes to two to refuse the application from Esquire Developments, Mr Bailey said that, in his view, the four grounds offered for refusal were not good enough to be successfully defended if the applicants appealed.

In such circumstances, the council might have to pay the applicants compensation and their legal costs, if the council lost.

The planning committee was asked to reconvene last Wednesday to consider the application again after being given a secret report on the potential costs involved to the council.

But the committee was unswayed by the threat of financial penalties and, after two hours of debate, the vote was again to refuse - by five votes to one - and this time citing six grounds for refusal.

However, that is not the end of the matter. Because Mr Bailey invoked his special powers, the committee’s decision counts only as a “recommendation”, and the application will now be debated at a meeting of the full council on Tuesday, April 8, for a final decision.

More than 200 objections had been lodged over the proposal, which is to build 39 market and 13 affordable homes on the 4.6-hectare site.

Around 50 objectors were in the council chamber at Kings Hill to hear the debate, where Mr Bailey re-iterated his view that the application should be approved.

There were a number of public speakers including Peter Couling, the chairman of Teston Parish Council, who urged councillors to: “Stand firm and stick to your decision.”

He said: “[Planning] officers have a responsibility to advise, but it is up to members to decide.”

Natasha Allen lives next to the site. If the application went ahead she would have the access road raised 1.5 metres above the level of her garden, just nine metres away.

She spoke passionately about her family’s loss of privacy and the upset her light-sensitive autistic son would suffer with headlamps shining directly into his bedroom at night.

She said the application constituted a clear statutory nuisance and suggested committee members ought to have been given advice about the potential cost of fighting a Judicial Review launched by residents if the council did approve the application.

Other members of the public spoke about the effect on neighbouring listed buildings and traffic on the roads.

Ruth Calderwood from the West Kent Badger Group said a planned 20m buffer zone around a known badger sett on the site was insufficient and suggested the application should be refused on the grounds of significant harm to bio-diversity.

Yvonne Moss, who lives in East Malling High Street, related the traffic problems already experienced in the narrow road, without adding more vehicles from an extra 52 homes.

However, Andy Wilford, speaking for the developer, presented a different view. He said the scheme would provide much-needed housing that would “allow local people to live in the community they grew up in.”

He suggested councillors should “listen to the silent majority and not to those who shout the loudest.”

Tonbridge and Malling council does not have a valid Local Plan and cannot show it has a five-year supply of land for future housing.

In such cases, the government says the balance should always be tilted in favour of development.

The leader of the council, Matt Boughton (Con), joined the meeting by remote link, and did not get a vote, but told his colleagues: “We do need to take into account our housing need.”

He told members: ”We need to make sure that we not using money in a frivolous way [fighting appeal decisions].”

However, Cllr Michelle Tatton (Lib Dem), said: “Just because we don’t have a five-year housing land supply, doesn't mean we have to accept development at any price.”

And she argued that the site “was not a sustainable location.”

Cllr Roger Roud (Lib Dem) agreed and after listing the lack of public transport or safe routes for cyclists or pedestrians, said: “If this is sustainable, I’m a monkey’s uncle.”

Visiting member Cllr Mike Taylor (Ind Alliance) said: “If developers are so concerned about the housing shortage, perhaps they should implement the 1.2m existing planning permissions they already have.”

Cllr Steve Crisp (Green) said he was “dismayed by the pressure being brought down on us [not to refuse the application].

He said: “Members should stick to their guns and vote for what is right.”

The councillors who voted for refusal were Bill Banks, Steve Crisp, Trudy Dean, Roger Roud and Michelle Tatton. Cllr Wendy Palmer (Con) was the only one to vote against.

In the three-year period between January 2021 and March 2024, Tonbridge and Malling council had 131 decisions go to appeal.

Just over a third of the subsequent decisions - 48 - went against the council and of those, only 11 cases saw the council ordered to pay costs.

The total bill for those was £81,564, an average of £7,400 each.

Find out about planning applications that affect you at the Public Notice Portal.

After the meeting, Mrs Allen said residents were delighted at the committee’s decision but were “very frustrated” that the battle was not yet over.

She said: “You would think a vote was a vote.”

She added: “The councillors on the planning committee know the area - they know about the landscape and the traffic situation.

“Members of the full council perhaps won’t understand how devastating this application would be.

“There really must be a site visit - which so far the planning officers have blocked - so that the councillors understand the issues.”

But she promised: “We will all be there again next time - this must not be allowed to happen.”