Maidstone council is to press ahead with its attempt to obtain a judicial review of KCC's decision to use money set aside for traffic mitigation measures to fund preliminary work for a Leeds/Langley Bypass, despite having its initial request rejected.

The council had its first request for a review quashed in the High Court last week by Mrs Justice Lang, who said: “In my view, the Maidstone council has not presented arguable grounds that KCC's decision was unlawful."

But the judge reached her decision solely on the basis of written submissions from the two sides and now Maidstone council has asked the court for an oral hearing.

The move is a gamble. At the first hearing, Mrs Justice Lang ordered Maidstone pay £9,000 towards the legal costs incurred by KCC in defending its position - and Maidstone has also spent £5,500 on its own legal advice.

Should it be successful in winning a review, it will not have to pay KCC's costs.

The application was officially lodged yesterday, with the hearing taking place, if granted, sometime in the autumn.

Cllr Martin Cox (Lib Dem), the leader of Maidstone Borough Council, said: “We have faced some criticism over the action we have taken. However, I feel it is important to establish clarity on this issue, since it has implications for the discharge of the council’s statutory planning functions. We acknowledge what the judge, Mrs Justice Lang, has said.

“We hope to be able to resolve this matter as quickly as possible and continue to work collaboratively with KCC for the benefit of all residents across the borough.”

The dispute arises because Maidstone council believes KCC acted unreasonably in seeking to use £200,000 from Section 106 payments made by developers along the Sutton Road to fund a modelling exercise to determine the costs and benefits of a bypass.

Mrs Justice Lang disagreed, saying: "I agree with KCC's analysis that this is a dispute about transport strategy which is not appropriate for resolution by the High Court, and that the defendant (KCC) is acting pursuant to, and not outside, its statutory powers.

"While the defendant's approach is controversial, it cannot be characterised as irrational, nor can it plausibly be contended that the defendant failed to take material considerations into account.

"I am not persuaded that there was a duty to give reasons for the decision, but in any event, the reasons for the defendant's position are well known."

Maidstone had not objected to investigating the possibilities of a bypass, but was opposed to the use of money that was required for specific mitigation measures along the Sutton Road, including junction improvements and better bus services.

Cllr Cox had said earlier: “Obviously we are disappointed by the decision. However, the fundamental reasons for instigating this legal process remain unchanged.

“Section 106 money, identified through the planning process in order to mitigate against the impact of specific developments, should not be used for any other purpose, other than that it is intended for.

“To use the money otherwise means that measures to reduce the impact of traffic arising from housing developments in the borough in the foreseeable future is compromised. In my view, this is detrimental to the communities of Maidstone and, is therefore, unacceptable."

KCC declined to comment on the latest development.