Protesters battling to stop an orchard being turned into 52 homes face their biggest challenge yet.

Residents in East Malling have twice convinced a Tonbridge and Malling planning committee to reject plans for the housing scheme at Ivy Farm in Wateringbury Road.

But the borough’s chief planner, James Bailey, has exercised powers that he has under the council’s constitution to call in the planning application for consideration by the full council.

He believes that the grounds for refusal given by the committee members would not be strong enough for the council to win if the developer appealed, despite more than 200 letters of objection.

As a consequence, he warned, the borough could face expensive legal costs.

Planning committee members were obliged to listen to a warning from the council’s legal team, given in private, before they considered the application for the second time in February, but they still reached the same conclusion - that the development should not be allowed.

They gave six grounds for refusal, including that it would cause harm to local listed buildings, harm to the East Malling Conservation Area, harm to the distinctive and historic landscape and appearance of the area, and that it was unsustainable being outside the confines of East Malling village with limited sustainable travel options.

They also said the applicant, Esquire Developments, had failed to carry out sequential testing to safeguard protected species - badgers - on the site and that there would be intrusive overlooking of neighbours’ property due to the unavoidable elevated height of the access road.

The outline application proposes 39 homes to be sold at market rate and 13 affordable homes across the 4.6-hectare site, where there is known to be a live badger sett.

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

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

Previously, the application has been considered only by members of the Area 2 planning committee which is made of 16 councillors, many from local wards.

The full council will include 44 members, many of whom will be unfamiliar with the area.

So far, planning officers have refused to sanction a site visit for members to see potential problems for themselves.

The council leader, Cllr Matt Boughton (Con), has already warned his colleagues: “We do need to take into account our housing need.

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

Kate Moore, one of the residents opposing the scheme, said: “It’s shocking that councllors are being denied a site visit. Many are from other parts of the borough and will not know the traffic situation, or appreciate the narrowness of the pavement or the topography of the site.

“It’s yet another illustration of how the planning process is failing the people.

“This whole concept that officers can overrule elected councillors is wrong. It means the public have to win three times, whereas the developer only has to win once.”

Tonbridge and Malling has a good record at defending appeals. In the three years between January 2021 and March 2024, the 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.

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.

On both previous occasions, around 50 members of the public have attended the council chamber to hear the debate, with many speaking at the meeting.

The application will be determined by the full council in the Council Chamber at Kings Hill on Tuesday, April 8, at 7.30pm.