A legal battle to stop a Hamilton nursery school expanding has failed.

Yesterday, the Court of Appeal dismissed the latest action by the Corporation of Hamilton against Woodmont Nursery's year-long bid to build extra classrooms at its Cedar Avenue site.

It was the latest in a series of legal proceedings in which the Corporation has tried to stop the buildings, complaining that the site would encroach a void between the road and prevent any future development.

They also failed earlier this year to gain an injunction to halt building work but warned that it was possible that a successful appeal could result in an order to pull the construction down.

It took the Court of Appeal two and a half hours to throw out the case, which was brought against an earlier decision in the Supreme Court. Then, Judge Vincent Meerabux dismissed an appeal by the Corporation against the Minister of the Environment's decision to allow the plan.

Court of Appeal President Sir James Astwood said the appeal was dismissed and the reasons would be given at a later date.

The Corporation argued that the extension would infringe a 15-foot space between the road and any buildings -- installed to allow for future road widening.

During the hearing, lawyer John Cooper, appearing for the respondent, Woodmont owner Dorothy Billings, said there was a time limit for the Environment Minister to invoke his powers when it came to the planning application.

But, he said, the applicant didn't have to wait until every avenue had been pursued by the Minister before building.

"There could be any number of reasons why the Minister should invoke permission but there is a limit when he can exercise this powers. If he does there are rights of compensation for the applicant,'' he said.

Work on the buildings has been completed but the rooms have not been brought into use as an Occupancy Certificate has not yet been granted.

Calvin Hastings-Smith, appearing for the Corporation of Hamilton, said the Minister did not originally follow the city plan when making his decision.

And he said the Minister was wrong to accept the appellant's argument that the building could not be sited elsewhere, when the Corporation countered that 93 percent of the site was vacant.

Nicole Stoneham appeared for co-respondent, the Ministry of Environment.

Corporation of Hamilton Secretary Roger Sherratt said they were disappointed at the result but would not want to comment further until they considered the judgment in full.