Court allows Islamic school

The decision will allow construction of a 1200-student primary and secondary school in Bass Hill, which has been fought by residents since the land was bought in 2006.

It is one of several applications for Islamic schools that have divided communities in NSW, leading to allegations that residents are using town planning arguments such as traffic to cloak racist sentiment.

Bankstown council first knocked back the proposal in 2007 after residents launched a campaign opposing the project.

The group behind the school, Al Amanah College, appealed against this decision. Last December, Senior Commissioner John Roseth of the court approved the plan to build the school on a 18,000 square metre site at Johnston Road. A child-care centre is also proposed.

Finding for the school, the senior commissioner addressed concerns raised by the council, including traffic flow, noise, ecology, the scale and design of the buildings and its social impact.

The judgement also referred to "the elephant in the courtroom" or "whether the council would have raised quite as many contentions as it did if the application had been for an Anglican school".

At the time, Mayor Tania Mihailuk ruled out a further appeal. But after lobbying from residents and legal advice indicating there had been an error of law, the council lodged a section 56 appeal.

This was an internal appeal from a commissioner to a judge on the basis that the initial decision contained a mistake in the way that the law was applied.

The council's legal team argued that Senior Commissioner Roseth had failed to take into account relevant provisions of the local environmental plan, including whether the development was compatible with the character of the area.

In dismissing the appeal, Justice Peter Biscoe found that the commissioner had considered the arguments raised by council and found against it on all counts.

The fact the commissioner did not refer to specific planning clauses in his judgment did not mean he had failed to take them into account, the judge said.

"In my opinion, having regard to the way the case was presented to him, the Senior Commissioner did not make any error of law, let alone an error of law that would justify intervention on appeal," Justice Biscoe wrote in his judgment, handed down on Monday.

The court dismissed the appeal and awarded costs against the council.

A spokeswoman said the council was disappointed with the decision. "We will now be working to ensure that the development of the site does not create unnecessary impact on neighbouring residents and that the conditions of the court's consent are strictly followed."

The principal of the Al Amanah College, Mohamad El Dana, said yesterday: "We are very pleased with the decision because we feel like justice has been achieved. There is no reason for any fear. We will be working for the benefit of the community as a whole."

In a separate case before the court, a Muslim group has appealed against Camden Council's decision to refuse its application to build a $19 million Islamic school for 900 students. A decision is expected in that case within weeks.