Amenability of LEIP/RIBA School Site-Selection Decisions to Judicial Review (and the Limits of Common-Law Consultation)

1. Introduction

Mull Campus Working Group Limited for Judicial Review ([2026] CSOH 11, Lord Cubie, Outer House) concerned a challenge to a local authority’s decision (7 March 2025) identifying Site 4 – Tobermory South as the preferred location for a new “like for like” 2–18 campus on the Isle of Mull, to be progressed through the Scottish Government’s Learning Estate Investment Programme (LEIP) and developed using the RIBA stage model.

The petitioner, a company established by individuals concerned about Mull’s educational provision, sought reduction of the preferred-site decision. The respondent was the relevant local authority (as education authority) responsible for the decision.

The case sat against intense local controversy. Although much debate focused on whether Mull should have a split-site solution (eg, retaining primary/ELC in Tobermory and relocating secondary centrally), Lord Cubie repeatedly emphasised the judicial review court’s constitutional limits: it reviews lawfulness, not the merits of the policy choice.

Key issues

  1. Competence/amenability: was the 7 March 2025 preferred-site decision susceptible to the supervisory jurisdiction?
  2. Information-gathering (Tameside-type) challenge: was it irrational/unlawful not to make further enquiries about a late “gift” offer for the Craignure site?
  3. Consultation/fairness: did common-law fairness require consultation (or was engagement sufficient), and was the process unlawful for failing to consult adequately?
  4. Procedure/standing orders: was the decision vitiated because no vote was taken/recorded in the manner alleged to be required?

2. Summary of the Judgment

  • Competence upheld: the preferred-site decision was amenable to judicial review.
  • Substance rejected: all three grounds failed; the petition was dismissed.
  • Offer to “gift” land: the council’s decision not to pause for further enquiries was not irrational; the letter was not a de plano, unconditional offer.
  • Consultation: there was no common-law duty to consult in the circumstances; in any event the engagement undertaken was adequate given what was realistically in scope after the unchallenged December 2024 decision to proceed on a single-site “like for like” basis.
  • Standing orders: no procedural irregularity vitiated the decision; absent a competent alternative motion/amendment, the officer recommendation could properly become the council’s decision.

3. Analysis

3.1 Precedents Cited (and their Influence)

A. Amenability to judicial review: statutory underpinning, contractual context, and the rule of law

The respondent argued the petition was incompetent because the decision was embedded in a LEIP/RIBA “project development process” (characterised as a bilateral arrangement with funders rather than a reviewable public law act). Lord Cubie rejected that. His reasoning drew on a line of Scottish authority that resists bright-line exclusions and insists on examining the nature and effect of the act challenged.

  • Stannifer Developments Ltd v Glasgow Development Agency (No 2) 1998 SCLR 870: cited for Lord McFadyen’s “gateways” analysis—statutory constitution and statutory power are indicators pointing toward fairness obligations, but not automatically determinative.
  • Stannifer Developments Ltd v Glasgow Development Agency (IH) 1999 SC 156: relied upon for the proposition that there is no general rule that statutory power implies a duty to act fairly, but fairness may arise where decisions resemble quasi-judicial determinations or deprive persons of existing rights/benefits. Lord Cubie used this not to narrow reviewability, but to place the preferred-site decision within a recognised “amenable” category because of its public statutory function and wide community effect.
  • Redcroft Care Homes Ltd v Edinburgh City Council 2025 SC 103: used to modernise the amenability analysis by reaffirming (via Lord Clark’s review) that the West tripartite test cannot impede enforcement of the rule of law. The judgment specifically referenced Lord Clark’s approach (via Abundance Investment Ltd v Scottish Ministers with dicta in West v Secretary of State for Scotland, Crocket v Tantallon Golf Club and Wightman v Secretary of State for Exiting the European Union), emphasising that courts must examine the act and its basis.
  • The contractual-context authorities canvassed in Redcroft Care Homes Ltd v Edinburgh City Council 2025 SC 103 (West v Secretary of State for Scotland; Watt v Strathclyde Regional Council; Blair v Lochaber District Council; Dryburgh v NHS Fife) framed the distinction between: (i) decisions purely about contractual rights/obligations (typically not JR), and (ii) decisions also characterisable as exercises of statutory power affecting those subject to that jurisdiction (amenable). Lord Cubie treated the site selection as falling in category (ii).
  • AXA General Insurance Ltd, Petitioners 2012 SC (UKSC) 122 (with reference to Eba v Advocate General for Scotland): invoked to highlight the rule-of-law foundation of supervisory jurisdiction, including public-interest review where no private right is infringed. Lord Cubie noted he did not need to go “so far” as AXA to uphold competence, but AXA supplied the constitutional backdrop that supports an expansive, non-formalist approach to amenability.
  • R v Barnet London Borough Council ex parte Varies House School Ltd and R. v Lord Chancellor, ex parte Hibbit and Saunders: referred to within the Stannifer discussion to illustrate contexts where fairness/consultation may arise and to caution against automatically importing duties from statutory setting alone.

Influence on outcome: These authorities collectively allowed the court to hold the petition competent despite LEIP/RIBA framing. The preferred-site choice was treated as an exercise of the council’s statutory education function with island-wide implications—therefore reviewable.

B. Duty to make adequate enquiries (Tameside duty) and Wednesbury control

On the “gift” letter from the Craignure landowners (the Knights), the petitioner argued the council irrationally failed to clarify a material new factor that might have changed affordability/risk scoring.

  • R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and others [2015] 3 All ER 261: used as Lord Cubie’s principal synthesis of the “Tameside duty” and the limits of judicial intervention. Plantagenet itself draws from:
    • Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (Lord Diplock’s formulation)
    • Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 (intensity limits)
    • R (on the application of Khatun) v Newham London BC (Office of Fair Trading, interested party) [2004] EWCA Civ 55
    • R v Kensington and Chelsea Royal London BC, ex p Bayani (1990) 22 HLR 406
    • R v Nottingham City Council, ex p Costello (1989) 21 HLR 301
    • R v Secretary of State for Education, ex p Southwark London BC [1995] ELR 308
    • R v Secretary of State for the Home Dept, ex p Venables, R v Secretary of State for the Home Dept, ex p Thompson [1997] 1 All ER 327
  • Ibrahimi v GCC 2026 CSIH 4: cited as recent Inner House reinforcement that the court intervenes only if no reasonable decision-maker could have been satisfied that it had enough information.

Influence on outcome: Plantagenet/Tameside principles anchored the “reasonableness of enquiry” test and the high threshold for reduction. Lord Cubie held the letter was not an unconditional, immediately actionable “free” offer; and given the project stage (desktop appraisal and equalised metrics), it was rational to defer detailed negotiations to later RIBA stages.

C. Consultation, engagement, legitimate expectation, and “conspicuous unfairness”

The petitioner attempted to recast dissatisfaction with engagement into an enforceable consultation duty. Lord Cubie again relied heavily on Plantagenet’s structured summary of when common-law consultation duties arise.

  • R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and others [2015] 3 All ER 261: used for (i) the “no general duty” proposition, (ii) the four circumstances in which a duty may arise (statute, promise, established practice, conspicuous unfairness), and (iii) constraints on courts adding consultation burdens not chosen by democratically accountable bodies. The Plantagenet list itself referenced:
    • R (on the application of Harrow Community Support Unit) v Secretary of State for Defence [2012] EWHC 1921 (Admin)
    • R (on the application of Cheshire East BC) v Secretary of State for Environment Food and Rural Affairs [2011] EWHC 1975 (Admin)
    • R (on the application of Bhatt Murphy (a firm) v Independent Assessor R (on the application of Niazi) v Secretary of State for the Home Dept [2008] EWCA Civ 755
    • R (on the application of BAPIO Action Ltd) v Secretary of State for the Home Dept [2007] EWCA Civ 1139
    • R (on the application of Hillingdon London BC) v Lord Chancellor (Law Society intervening) [2008] EWHC 2683 (Admin)
    • Board of Education v Rice [1911] AC 179
    • A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346
    • Westminster City Council v Greater London Council [1986] 2 All ER 278
    • R (on the application of Davies) v Revenue and Customs Comrs, R (on the application of Gaines-Cooper) v Revenue and Customs Comrs [2011] UKSC 47
    • R v North and East Devon Health Authority, ex p Coughlan (Secretary of State for Health intervening) [2000] 3 All ER 850
  • R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168: used for the four “Sedley/Gunning” criteria for lawful consultation, as endorsed in:
  • R (Medway Council) v Secretary of State for Transport Local Government and the Regions [2003] JPL 583: cited for the proposition that fairness can sometimes require consultation on arguable but discarded options, depending on context.

Influence on outcome: The court held that the council’s activities were best characterised as engagement, not a legally binding consultation promise, and that the scale/controversy of the decision did not itself create a consultation duty. Moreover, any “missing” consultation would not have been causative because the split-site solution had already been rejected (20 December 2024) on affordability and educational-benefit grounds—an unchallenged decision.

3.2 Legal Reasoning

A. Competence: a reviewable statutory-function decision despite LEIP/RIBA framing

Lord Cubie treated the 7 March 2025 decision as a discrete exercise of statutory education authority powers with direct implications for island-wide educational provision. The fact that LEIP funding carried “terms & conditions” and referenced RIBA stages did not convert the decision into a non-reviewable private/contractual act. Crucially, the decision was “capable of affecting all of those in respect of whom the statutory jurisdiction was to be exercised.”

The court also clarified the scope of the challenge: it was truly about location, not “nature and location”. The “nature” question (single campus vs split site) had been determined on 20 December 2024 and was not attacked. This framing mattered to the later causation/materiality analysis.

B. The Knights’ letter: no irrational failure of inquiry

The court’s factual reading of the 26 February 2025 letter was decisive. It was not a simple unconditional “gift”; it contemplated public/private collaboration and “shared infrastructure” benefiting an adjacent housing development. Lord Cubie relied not only on the letter’s text but on Mr Knight’s own affidavit describing it as a “statement of intent” with “unknowns”.

Against the Plantagenet/Tameside standard, the council’s choice not to undertake rapid, preferential, site-specific negotiations at RIBA stage 0—when it was applying a uniform desktop appraisal approach and deferring procurement detail to stages 1–2—was “perfectly intelligible” and not Wednesbury irrational.

C. Consultation: no common-law duty, and (in any event) adequate engagement

The petitioner advanced the case as one of procedural unfairness: the gravity of “once in a generation” decisions should, it was said, compel consultation. Lord Cubie rejected that as a basis for creating a duty. Applying Plantagenet, he found:

  • no statutory consultation duty on this particular preferred-site selection stage (distinct from later statutory processes);
  • no promise or established practice amounting to a legitimate expectation to consult on shortlisted sites;
  • no “exceptional” conspicuous unfairness requiring a judge-made consultation requirement.

In the alternative (even if some obligation were assumed), the court held further consultation would not have made a difference given the unchallenged 20 December 2024 decision rejecting split-site options as unaffordable and educationally inferior. The “realistic” choice space was essentially central vs Tobermory, not the broader menu implied by survey options.

The judgment also noted that the council’s own February 2025 report contemplated future review as more detailed information emerged through RIBA stages—softening the claim that the process was irrevocably closed.

D. Standing orders and voting: no vitiating procedural defect

The petitioner argued local democratic accountability required a vote and record of positions. The respondent’s answer, accepted by the court, was practical and constitutional: the officer recommendation was a motion moved and seconded; no competent amendment was put; therefore the motion carried. Members seeking recorded dissent had not advanced a competent alternative motion/amendment as required by standing orders.

3.3 Impact

  • Earlier-stage education decisions can be reviewable: the court confirms a preferred-site decision (even at a pre-statutory-consultation point in a funding/design pipeline) may be amenable to judicial review where it is anchored in the authority’s statutory education function and has wide community effect.
  • But merits challenges remain hard to dress as process challenges: where the practical dispute is with an earlier unchallenged “scope” decision (here: single-site, like-for-like), attacking later downstream steps may fail on materiality/causation.
  • High threshold for “failure to inquire” claims: late-breaking proposals (such as a conditional land “gift”) will not oblige authorities to recalibrate an established appraisal methodology unless the failure to inquire crosses the demanding Plantagenet/Tameside threshold.
  • Engagement is not necessarily consultation: the judgment reinforces that courts will not lightly impose consultation duties simply because a project is controversial or important; the “conspicuous unfairness” route remains exceptional.
  • Local-authority procedure: challenges based on the absence of a recorded vote will likely fail where standing orders provide that, absent a competent amendment, the moved motion is deemed agreed.

4. Complex Concepts Simplified

Supervisory jurisdiction / competence
Whether the Court of Session can review a decision at all. A decision is generally reviewable if it is a public-law act (often tied to statutory powers/duties) affecting the public, not merely a private contractual matter.
LEIP and “like for like”
LEIP is a competitive funding programme for learning estates. “Like for like” means the funding is designed to replace existing provision rather than expand it (eg, no extra funding for duplicated facilities in a split-site solution).
RIBA stages
A project management framework for construction: stage 0 is early strategic appraisal; later stages develop design, procurement, and delivery. The court accepted it was rational to use desktop appraisals at stage 0 and defer detailed land negotiations to later stages.
Tameside duty
A public body must take reasonable steps to inform itself before deciding. Courts intervene only if no reasonable authority could think it had enough information.
Wednesbury unreasonableness
A high threshold: a decision is unlawful only if it is so unreasonable that no reasonable authority could have made it.
Common-law duty to consult & Gunning criteria
There is no general duty to consult. If a duty exists, lawful consultation typically requires: (i) proposals still formative, (ii) adequate reasons/information, (iii) adequate time, and (iv) conscientious consideration of responses.
Legitimate expectation
If a public authority clearly promises consultation (or has a clear, consistent practice), fairness may require it to follow through—subject to statutory constraints.
“Conspicuous unfairness”
An exceptional common-law category where fairness demands consultation even without statute/promise/practice. The court held this threshold was not met here.
Reduction; pleas in law
“Reduction” is the Scottish remedy setting aside an unlawful decision. “Pleas in law” are the parties’ formal legal propositions; the respondent’s were upheld and the petition dismissed.

5. Conclusion

[2026] CSOH 11 is significant less for its outcome (dismissal) than for its structured reaffirmation of two boundary lines in Scottish judicial review: (1) amenability—a local authority’s preferred-site decision for a new school, taken in the exercise of its statutory education function and with broad public impact, can fall within supervisory jurisdiction notwithstanding funding frameworks and project-stage methodologies; and (2) fairness/consultation—even in highly contentious “once in a generation” projects, the common law will not readily convert engagement into an enforceable duty to consult absent statute, promise, settled practice, or truly exceptional conspicuous unfairness.

The decision also illustrates a practical forensic lesson: where the operative controversy is driven by an earlier “scope” decision (here, the unchallenged 20 December 2024 rejection of split-site options), later-stage challenges may struggle on materiality even if framed as process complaints.