nursery expansion scheme, the Court of Appeal has ruled.

Appeal judges dismissed a move by the Corporation of Hamilton against the Woodmont Nursery in Hamilton's Cedar Avenue which claimed the Minister had not followed the law.

The Corporation has announced it will not appeal the case which has centred around expansion into the area reserved for potential road widening for motor vehicles.

Dorothy Billings, who has operated Woodmont Nursery for 20 years, said she is pleased with the ruling and intends to accept 20 students in January.

The court found then Environment Minister had considered the City of Hamilton Plan of 1984 in allowing the extension of the building.

And the three-strong appeal court added that the Minister had taken account all "material considerations'' required by the Planning Act.

Writing for his colleagues, Mr. Justice Philip Clough said the Corporation was not justified in complaining of unfairness when the Minister rejected their appeal.

The Minister refused to turn down the application to extend a pre-existing encroachment into the 15-foot minimum setback.

Work was stopped on the Woodmont Nursery, on the corner of Dundonald Street and Cedar Avenue earlier this year when the Corporation took out an injunction against the owner.

The Corporation complained the further encroachment would block any future road expansion and was protected by the city plan.

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

Kelvin Hastings-Smith, appearing for the Corporation, had argued the Minister did not follow the City Plan when making his decision.

The court found Puisne Judge Vincent Meerabux was correct in dismissing an earlier Supreme Court appeal and in using a decision by the Privy Council on the Barber v the Environment Minister and Scarborough Property Holdings of 1996.

The Corporation's lawyers also argued that the Minister should have relinquished discretionary powers on the appeal if he had solely followed the City Plan -- but the Court of Appeal did not agree.

It also found the Minister had properly evaluated the encroachment and his discretion was justified.

And the court said the Minister was correct in taking into consideration the fact that the City Plan is not clear on the positions of the road allowance lines and it is difficult for the public to see.

Lawyer John Cooper appeared for Woodmont Nursery and crown counsel Nicole Stoneham appeared for the Environment Ministry.

Mrs. Billings explained that the school now has places for 60 students and that she had started the business in her home in 1978.

She added: "It has been a long two years. I am pleased that we were successful and can help satisfy demand.''