Opponents of a scheme to build 52 homes on an orchard are planning to turn up in force when the application is heard again tomorrow.

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

Although the planning committee voted by eight to two to refuse the application from Esquire Developments, Mr Bailey said that, in his view, the grounds 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.

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.

When the committee reconvenes at the council offices in Gibson Drive, Kings Hill, on Wednesday at 6.30pm, members will first consider a confidential report from the council’s legal officers on the risk of costs, before being asked to hear all the planning arguments - for and against - again.

But even if the committee members remain unswayed by the threat of costs and still vote for refusal, that will not be the end of the matter.

Their vote will be regarded only as a “recommendation” - and the application will then move on for consideration by the full council at a later date.

If, on the other hand, they change their minds and vote to accept the application, that will end the matter and the scheme will go ahead.

Marc Page, one of the many residents who spoke against the application in January, said: “I remain optimistic.

“We’ve been fighting this already for three years. We are not going to give up now.”

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.

Mr Bailey’s use of his deferral powers has prompted a review of the council’s constitution.

At a full council meeting tonight, councillors will be asked to change the wording in the constitution.

At present, Mr Bailey can use such powers if there is a “significant risk of costs”.

The proposal is to change that to a “risk of significant costs,” putting the emphasis on the cost bill rather than the likelihood of losing.

The council defines “significant costs “ as anything over £5,000.

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

Only 48 appeals - just over a third - went against the council

Of those, in only 11 did the council have to pay costs.

The total bill for those 11 was £81,564 - or an average of £7,400 each.

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

Details of the Ivy Farm application can be found on the TMBC website under application number 22/01570.