Factual and Procedural Background
This petition concerns an area of land known as Corton, part of the South‑East Ayr Strategic Expansion Area, owned by the Petitioner. At a council meeting of the Respondent on 12 December 2024 the council resolved not to approve in principle a request by the Petitioner for £21.41 million of funding said to be necessary to make development of Corton economically viable. The minute recorded four outline reasons for refusal: (i) risk the funding would be unlawful under section 12(1)(b) of the Subsidy Control Act 2022; (ii) inconsistency with the council's duty to secure best value under the Local Government in Scotland Act 2003; (iii) risk of breaching Regulation 14 of the Public Contracts (Scotland) Regulations 2015 if a regulated procurement procedure was not followed; and (iv) breach of the council's acquisition and disposals policy and lack of best value in land valuation. The Petitioner seeks reduction of that decision.
Procedurally, the council had previously expressed willingness to grant planning permission in principle subject to conditions and a section 75 agreement. The Petitioner provided draft Heads of Terms seeking payments from the council for land acquisitions and contributions to infrastructure costs. The council Director prepared a report dated 5 December 2024 recommending refusal; that report ran to 17 pages with 12 appendices (290 pages) and referenced two opinions of senior counsel. The Petitioner challenges the decision on multiple grounds and seeks judicial review. Judge Lake heard the petition and, for reasons set out below, refused the remedies sought.
Legal Issues Presented
- Whether the court's supervisory jurisdiction to review the Respondent's decision was engaged (including whether the decision was taken under section 20 of the Local Government in Scotland Act 2003).
- Whether councillors were deprived of relevant material (two senior counsel opinions) and, if so, whether that vitiated the decision.
- Whether the council misdirected itself or took into account an irrelevant consideration by treating the Subsidy Control Act 2022 as creating a real risk that the funding would be an unlawful subsidy.
- Whether the report's summary of legal advice was fair, accurate and sufficient for councillors to make a lawful decision.
- Whether the council's reasoning that Regulation 14 of the Public Contracts (Scotland) Regulations 2015 might be engaged was an irrelevant or irrational basis for refusal.
- Whether the Respondent lawfully discharged its duty to secure best value under section 1 of the Local Government in Scotland Act 2003.
Arguments of the Parties
Petitioner
- The decision was unlawful because not all relevant material (two senior counsel opinions) was provided to councillors.
- Councillors were told the funding would, in all circumstances, be unlawful under the Subsidy Control Act 2022 (an irrelevant consideration or misdirection of law).
- The funding would in fact serve the public interest in unlocking wider infrastructure and so would not risk being an unlawful subsidy.
- The Respondent's conclusion that Regulation 14 of the 2015 Regulations might be breached was incorrect because the council's contribution figures were mischaracterised.
- The Respondent failed to undertake a lawful assessment of best value under section 1 of the 2003 Act.
Respondent
- The court's supervisory jurisdiction may not be engaged; this was a commercial/ discretionary decision whether to provide funding and there was no obligation to provide it.
- The decision fell within the council's discretion under section 20 of the 2003 Act and the council had properly treated legal risk as relevant to whether to commit to borrowing and large expenditure.
- The report correctly summarised legal advice and identified a real risk that the funding could amount to a subsidy; procurement and best value concerns were properly considered.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| West v Secretary of State for Scotland 1992 SC 385 |
Defines supervisory jurisdiction (tripartite test) to regulate delegated decision‑making. |
The court applied West to determine that the decision not to exercise a statutory discretion (under s20 of the 2003 Act) fell within supervisory jurisdiction. |
| Wightman v Secretary of State for Exiting the European Union 2019 SC 111 |
Broader statements on purpose and scope of judicial review (discussed in submissions). |
The court considered Wightman but treated its broader statements as not overruling West; referenced for context on scope of review. |
| The State of Mauritius v The (Mauritius) CT Power Ltd [2019] UKPC 27 |
Authority referenced on scope of review in other jurisdictions. |
The court placed little weight on it because it is not a Scots law authority. |
| Abundance Investment Ltd v Scottish Ministers 2020 SLT 163 |
Refinement of West: focus on particular decision and basis of that decision for review. |
Used to support the approach that the basis of the act or decision determines availability of review; consistent with West and applied in analysis. |
| Redcroft Care Homes Ltd v City of Edinburgh Council 2025 SC 103 |
Approval by Inner House of passages in Abundance concerning scope of review. |
Referenced as confirming the approach that the decision and its statutory basis determine reviewability. |
| North Lanarkshire Bio Power Ltd v Scottish Ministers [2021] CSIH 47 |
Where a decision follows a report's recommendation, the report is taken to provide the reasons. |
Court noted the principle but observed it was unnecessary here because the decision expressly stated it was for reasons set out in the report. |
| Patton v East Renfrewshire Council [2017] CSOH 158 |
Purpose and required standard of reports to councillors: summarise material, be fair and enable decision. |
The court relied on Patton to assess whether the council's report fairly and accurately summarised legal advice and material considerations. |
| Cran v Campden London Borough Council [1995] RTR 346 |
Reports must provide fair, objective summaries; cannot rely on appendices alone. |
Applied to emphasise that the report must be fair and accurate and not require councillors to "ferret out" the detail. |
| R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB) |
Requirement for fairness in reports summarising evidence and advice. |
Referenced in assessing fairness of the council's report. |
| R (Crematoria Management Ltd) v Welwyn Hatfield Borough Council 2018 EWHC 382 (Admin), [2018] Env LR 26 |
Error of fact in a report can amount to taking into account an irrelevant consideration. |
Used to illustrate that misleading factual statements in reports can vitiate a decision; court compared to the present report and found no such failing. |
| R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) |
Summaries that omit important qualifications can lead to reliance on inaccurate information. |
Referenced in evaluating whether the report fairly represented counsel's opinions; court found the summary adequate. |
| R v Central Arbitration Committee ex p BTP Tioxide Ltd 1981 ICR 843 |
Decision‑maker misdirects itself when it gets the law wrong. |
Invoked by Petitioner to argue legal misdirection under the Subsidy Control Act; court concluded the issue was not "hard‑edged" and the council had addressed risk. |
| Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 |
Duty of decision‑maker to take reasonable steps to acquaint itself with necessary information. |
Cited by Petitioner; court held that what is "reasonable" is for the decision‑maker and Petitioner had not shown Wednesbury unreasonableness in not obtaining more information. |
Court's Reasoning and Analysis
Judge Lake first resolved that the supervisory jurisdiction applied. Although the petition had not originally identified the statutory source for the payment power, the Petitioner later relied on section 20 of the Local Government in Scotland Act 2003. The court held that a decision whether to exercise that discretion is reviewable under the West tripartite test and so the supervisory jurisdiction applied.
The court then addressed whether the factual dispute about distribution of two senior counsel opinions required an evidential hearing. Conflicting affidavits existed, but the judge found resolution of that factual dispute unnecessary for disposal: the material question was whether any failure to supply source documents vitiated the decision. Applying authorities (including Patton and Cran), the court held there is no general duty to provide all source materials to councillors so long as the report fairly and accurately summarises material considerations and councillors are aware such source materials exist and could request them. The court therefore concluded no hearing was required on that point.
On accuracy and sufficiency of the report, the court examined the content of the counsel opinions (expressing that there was a real risk the payments could amount to a subsidy, and specific concerns about land acquisition above market value and whether infrastructure works would confer a selective advantage). The court read the report as taking a precautionary approach, accurately summarising that counsel could not say with reasonable certainty that no subsidy risk existed. The court found the report's summary fair and not misleading, noting the report emphasised risk and financial prudence given the need to borrow to fund payments.
Regarding the Subsidy Control Act 2022, the court accepted that the question whether funding is a subsidy is fact‑sensitive and not "hard‑edged"; the materials did not permit the court to declare definitively that no subsidy risk existed. The court rejected the Petitioner's attempt to substitute its own view of acceptable risk for the council's assessment.
On the Public Contracts (Scotland) Regulations 2015, the court noted the decision language recorded a possible (may) breach of Regulation 14 if no regulated procurement procedure followed; the judge held it was rational to state the possibility and that the council's framing was appropriate at the in‑principle stage.
On best value under the 2003 Act, the court observed the council had produced a substantial assessment (Appendix 4) and that the Petitioner's criticisms were selective. The judge applied the Wednesbury standard: the Petitioner had not established the council acted unreasonably in the relevant sense or failed to take reasonable steps to inform itself.
Finally, on adequacy of reasons, the court held the reasons provided in the decision and the accompanying report were sufficient; the council had framed its decision around acceptable risk and resource allocation and there was no requirement to address in detail every submission from the Petitioner at the in‑principle stage.
Holding and Implications
DISMISSED. The court sustained the Respondent's third and fourth pleas, repelled the Petitioner's pleas‑in‑law, and refused the remedies sought in Statement of Fact 4 of the petition. The direct effect is that the council's decision of 12 December 2024 refusing in principle the funding request remains in force.
No broader legal precedent was created: the court applied existing authorities (including West, Patton and Cran) to the facts and found the council's report and decision-making process lawful; the judgment does not purport to alter the scope of supervisory review or to set a new rule beyond the application to these facts.
Judge Lake delivered the opinion.