Company challenging location of new school site on Mull has petition dismissed

About this case:

• Citation:
  [2026] CSOH 11
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Cubie

Mull Campus Working Group Ltd, a company set up to champion the construction of a new school on the island for children aged two to 18 with a more central location, argued that Argyll and Bute Council had failed to inform itself on material developments relating to site selection and failed to adequately consult the community before it took the decision complained of. The respondents challenged the petition as incompetent on the basis that the decision taken was not within the court’s supervisory jurisdiction.

The petition was considered in the Outer House of the Court of Session by Lord Cubie, with Mure KC appearing for the petitioner and Thomson KC and Blair, advocate, for the respondent.

Offered to gift

The current provision of secondary education on Mull, based in Tobermory, was noted to require that some students required to board on the mainland and attend school in Oban because of the travelling commitments which would otherwise arise from attending school in Tobermory. The respondent’s learning estate strategy for 2020-2030, which set suitability grades of A or B as the minimum acceptable standard, assessed the Tobermory campus at C, meaning poor suitability. It determined to address this issue with possible financial support from the Scottish government’s Learning Estate Investment Programme, a competitive tendering process.

Following engagement meetings in the second half of 2022 with residents and primary and secondary pupils, the respondent agreed to submit a LEIP bid which was accepted as part of phase 3 of the programme. After community engagement analysis to which 352 people contributed, which identified that most responses supported a “split site” approach keeping primary and early learning care in Tobermory with a more centralised high school, the respondent nonetheless proceeded on a single site basis.

At a meeting of 7 March 2025, the respondents selected a shortlisted site at Tobermory South as the location for the new single campus, which was scored at 645 points in a site scoring process. However, the owners of the second highest-scoring site at Craignure, Mr and Mrs Knight, offered to gift that site to the respondent to construct the new school on it. As a result of this offer a director of the petitioner, Mr Reade, wrote to the respondents to ask for a reconsideration on the basis of the new position. Nonetheless, the respondents proceeded on the basis that Tobermory South was the preferred site.

On competence, the petitioner submitted that the decision made was within the context of the Education (Scotland) Act 1980, which was the source of the respondent’s power to build a new school on Mull. In respect of the decision itself, the respondent had failed to make further enquiries about the offer from the Knights and irrational for them not to consider the nil acquisition cost.

Intelligible process

In his decision, Lord Cubie said of the competence of the action: “The decision to select a site has implications for the educational provision in the island, so flowed from the respondent’s statutory powers; it is not necessary for the decision to deprive a party of a right, benefit or legitimate expectation; the respondent as local education authority has the power to decide how to meet the provision of education; that decision does or is capable of affecting all of those in respect of whom the statutory jurisdiction was to be exercised. The council’s decision making in relation to the location of the campus is amenable to the supervisory jurisdiction of the Court of Session.”

Considering the offer from the Knights, he said: “I do not consider that [the respondents’] Mr Hendry in his report dismissed the offer, nor was he calling the integrity of Mr Knight into question; the report reflected what Mr Knight has said himself, that further work had to be done in considering the offer. It is perfectly intelligible and not in breach of the council’s obligations to make reasonable enquiries, for the council to decline to do so. As senior counsel for the respondent submitted, it was not an offer susceptible to a de plano acceptance.”

He added: “The respondents were following a mandated, or at least intelligible process; that involved measuring each prospective site against the other on the basis of available material on an identical basis; there was no engagement in the procuring of the land. The precise terms of any such contract was [a matter] for a later stage; and in any event, the letter opened a negotiation; it did not determine the precise terms of an acquisition. There was no failure in the respondent’s actions in declining to undertake further inquiry in response to the Knights’ letter.”

Lord Cubie concluded on the alleged failure to consult: “No promise to consult arises and there is no legitimate expectation of consultation arising simply from the scale or context of the decision. Strength of feeling does not heighten the legal obligations upon the respondent. There was no exceptional circumstance giving rise to conspicuous unfairness in a failure to consult in terms, or in more detail, about the specific short-listed sites.”

The petition was accordingly dismissed.