PETITION OF PERTH AND KINROSS COUNCIL FOR JUDICIAL REVIEW AGAINST THE SCOTTISH MINISTERS [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF PERTH AND KINROSS COUNCIL FOR JUDICIAL REVIEW AGAINST THE SCOTTISH MINISTERS [2020] ScotCS CSOH_41 (07 May 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_41.html Cite as: [2020] CSOH 41, [2020] ScotCS CSOH_41, 2020 GWD 17-245

Judicial Review of a decision by the Scottish Ministers to issue a call-in notice under the

Respondent: Ross QC; Charteris: Scottish Government Legal Directorate

[1] The petitioner is a local authority which, like all Scottish local authorities, has a duty

to organise and provide education in its area and in performing those functions is properly

described as an education authority. One of the primary schools within the petitioner’s area

of responsibility is Abernyte Primary School (“Abernyte”). The school is a rural school,

situated within the village of Abernyte, which lies around seven miles west of Dundee. The

closest primary school to Abernyte is Inchture Primary School, approximately 3.4 miles

away. On 27 May 2019 the petitioner notified the Scottish Ministers (“the respondents”), of

a decision to implement a proposal to close Abernyte. There followed a period during

which the respondents received representations, at the end of which they decided to issue a

call-in notice in terms of the relevant legislation, the Schools (Consultation) (Scotland) Act

2010, as amended (“the 2010 Act”). The petitioner seeks to challenge and reduce the

[2] The 2010 Act introduced a comprehensive consultation scheme that must be

followed where any Scottish education authority is considering closure of a school. In this

context the education authority is the local authority or the Council and I will use all three

terms interchangeably. There are a number of requirements at each stage – pre-consultation,

consultation and post consultation. Section 1 of the legislation has an overview of the key

requirements for all school closures. Section 4 requires a local authority to prepare a

proposal paper that includes a number of features listed in section 4(1). Importantly for

these proceedings, section 4(2A), added by the 2014 Act, now requires that where a proposal

paper relates to a closure proposal, “ … it must also contain information about the financial

[3] Particular provision is made for rural schools, in that authorities such as the

petitioner must have “special regard” to rural factors and so the procedures and

requirements relating to proposed closure of a rural school such as Abernyte are more

stringent. Some of these were introduced by amendments to the legislation by the Children

and Young People (Scotland) Act 2014 (“the 2014 Act”). The provisions of the amended

legislation relating to rural schools insofar as material to these proceedings are in the

(1) This section applies in relation to any closure proposal as respects a rural

(2) The education authority may not decide to implement the proposal (wholly

(b) having so complied, is satisfied that such implementation of the

proposal is the most appropriate response to the reasons for formulating the

(2) The education authority must have special regard to the factors mentioned in

(b) the likely effect on the local community in consequence of the proposal.

(4) For the purpose of subsection(3)(b) … the effect on the community is to be

(b) the availability of the school’s premises and its other facilities for use

(1) This section applies where an education authority is formulating a closure

(b) consider whether there are any reasonable alternatives to the proposal

(1) This section applies to any closure proposal as respects a rural school.

(b) describe what ( if any) steps the authority took to address those

(d) set out the alternatives to the proposal identified by the authority

(e) explain the authority’s assessment under section 12A(2)(c),

(f) explain the reasons why the authority considers, in light of that

assessment, that implementation of the closure proposal would be the

[4] The call-in provisions, which relate to all education authority decisions to implement

a school closure proposal, are contained in sections 15 and 17 of the 2010 Act, again as

amended by the 2014 Act. These provisions, again insofar as material to the issues for

(1) Subsections (2)-(6) apply where, in relation to any school, an education

(a) notify the Scottish Ministers of that decision within the period of

6 working days starting with the day on which the decision is made,

(3) Before the expiry of 8 weeks starting with the day on which that decision is

made, the Scottish Ministers may issue a call-in notice to the education authority.

(4) In considering whether to issue a call-in notice, the Scottish Ministers are to

take account of any relevant representations made to them ( by any person) within

(1) The Scottish Minsters may issue a call-in notice only if subsection (2) applies.

(2) This subsection applies where it appears to the Scottish Ministers that the

(a) in a significant regard to comply with the requirements imposed on it

by ( or under) this Act so far as they are relevant in relation to the

(b) to take proper account of a material consideration relevant to its

(3) The education authority must provide the Scottish Ministers with such

information in connection with a closure proposal as they may reasonably require of

[5] Further, sections 17A and 17B now set out the process where a call-in notice is issued

by Scottish Ministers. In essence the Ministers must refer the proposal to the Convenor of

the Schools Closure Review Panel who must then constitute a panel within a specified time

frame to review the proposal. The approach to be taken by the panel is set out in

section 17B. In essence the panel must consider whether or not the education authority has

failed in either of the ways in which it appeared to Scottish Ministers that it may have, as

section 17B mirrors the language of section 17(2). The education authority must provide the

panel with such information in connection with the proposal that the panel reasonably

requires – section 17B(2). In terms of section 17C, the decisions available to the panel include

(a) refusing to consent to the proposal, (b) refusing to consent to the proposal and remitting

to the education authority for a fresh decision on implementation, or (c) granting the

proposal unconditionally or subject to conditions. There is provision in section 17D for an

appeal against the panel’s decision, restricted to points of law. Finally, section 19 requires

an education authority to have regard to any guidance issued by Scottish Ministers in

[6] The petitioner in this case began consideration of its school estate strategy in August

2012, the relevant document being produced at No 6/18 of process. Abernyte was identified

as a challenge to management of the school estate by November 2016. In a report (No 6/21

of process) to the authority’s Lifelong Learning Committee (“the Committee”) dated

2 November 2016, the low occupancy of Abernyte was noted and recorded as 8 pupils out of

a capacity for the building of 44 pupils. It was proposed that an options appraisal be

developed to consider the matter of under occupancy of the school. Detailed work was

undertaken to prepare that options appraisal, all as recorded by Sheila Devlin, Executive

Director, Education and Children’s Services of the petitioner, in her affidavit No 10 of

[7] An initial Options Appraisal (No 6/5 of process) was submitted to the Lifelong

Learning Committee in March 2018 and recommended reviewing the catchment area to

determine whether this would increase Abernyte’s school roll sufficiently to ensure its

future sustainability. Closure was not recommended as a reasonable option pending such a

review. A further report (No 6/8 of process) and associated updated Options Appraisal

(No 6/9 of process) was then submitted to the Committee in August 2018. That appraisal

recorded that the conclusion of the assessment on catchment area was that there would

continue to be insufficient pupil numbers to increase the school roll at Abernyte or make it

sustainable in future years if the catchment was extended. It recommended that a statutory

consultation exercise take place on a proposal to close the school.

[8] The Proposal Paper (No 6/10 of process) in relation to the closure of Abernyte was

published on 24 October 2018 and the necessary consultation commenced shortly thereafter.

There were both public and staff meetings and representations were received. A report

(No 6/11 of process),(“the Consultation Report”) on the outcome of the consultation was

published on 18 April 2019. The appendices to that report include a detailed analysis of the

representations made and the petitioner’s responses to them. Particular issues had arisen in

relation to the reliability of the data used by the council including on pupil projections,

whether the option to review the catchment area had been fully assessed and whether the

council had erred in relation to the availability of a playing field in the village. On the last

point, the petitioner had erred in recording that the field was owned by a local community

interest company when it is privately owned. The council did not regard this as an error

related to a material consideration. The petitioner also provided some breakdown of the

capital costs that had been estimated would be incurred if Abernyte did not close and was

upgraded. The total estimate of such cost was £330,000. In essence the petitioner concluded

that it had made no material inaccuracies or omissions in the proposal paper.

[9] On 8 May 2019 the Committee’s Executive Director (Sheena Devlin) submitted a

report (No 6/12 of process) to the Committee narrating the outcome and findings of the

statutory consultation exercise and sought approval to implement the proposal to close the

school from 1 July 2020 or as soon as possible thereafter. The Committee granted that

approval on 22 May 2019 and the necessary notification of the decision to Scottish Ministers

with accompanying documentation was given on 27 May 2019, all in terms of section 15 of

the 2010 Act. The respondents then assessed the material. Mr Jerry O’Connell, Team Leader

of the School Organisation Team within the Scottish Government’s Learning Directorate

reviewed the documentation and completed a Proposal Assessment Form (No 7/1 of

process) on which he noted issues for consideration arising from the paperwork. A deadline

of 11 June 2019 for further representations was fixed. The call-in notice under challenge was

[10] Mr O’Connell issued the call-in notice (No 6/1 of process). It records that

52 representations were received by Scottish Ministers during the relevant period to 11 June

2019. The material parts of the notice identify three areas of concern that led to the

conclusion to call-in the proposal and are in the following terms;-

“The Scottish Minsters have concerns about Perth and Kinross’s assessment of the

financial savings that would result from the closure of Abernyte and that these

The Scottish Ministers are also concerned about the high refurbishment costs for a

school with a “B” condition rating. In the Councils’ final report, it provided a

detailed breakdown and rationale for the £330,000 costs, however in our view these

costs appear to be high for a school with a “B” condition rating and are also stated to

be “outwith five years” and therefore should not be included in costs the Council

After careful consideration, the Scottish Ministers have concluded that further

investigation is merited into the Council’s assessment of the future capital costs

the Council would incur if Abernyte were to remain open. There may be a failure

with reference to section 17(2)(a) of the 2010 Act – that is, that Perth and Kinross

Council may have failed in a significant regard to comply with the requirements

imposed on it by (or under) this Act so far as they are relevant in relation to the

closure proposal, in that the financial information the Council provided in terms of

The Scottish Ministers note that the Council has failed to describe in their report the

actions they have taken in the past to address the reasons for closure and the reasons

for not taking any steps, or to explain why it did not take any such steps (as required

by section 13(2)(b) and (c) of the 2010 Act, respectively). In addition, the Scottish

Ministers are concerned by representations they have received which contend that

the Council has not taken the appropriate steps to address these issues despite

evidence of letters from the local community to the Council about their concerns

dating back to 2012. The Council’s reports also appears to focus primarily on the

pre-consultation activity undertaken by the Council in the run up to formally

consulting on closure and do not appear to describe explicitly the previous action the

Council had taken, nor why they did not take steps to address the problems

After careful consideration, The Scottish Ministers have concluded that further

investigation is merited into the efforts the Council has made to describe what

steps it took to address the reasons for closure which is a requirement under

section 13(2)(b) of the 2010 Act. There may be a failure with reference to section

17(2)(a) of the 2010 Act- that is, that Perth and Kinross Council failed in a

significant regard to comply with the requirements imposed on it by ( or under) this

Act so far as they are relevant in relation to the closure proposal. Given the

centrality of the unsustainably low pupil roll to the Council’s proposal, such a

failure would be considered to be a failure in a significant regard.

The Scottish Ministers note that the 2010 Act requires that the local authority

consider the impact on the community’s future sustainability, availability of the

school’s premises and facilities for use of the community. There appears to have

been significant distance between the community and the local authority on the

impact Abernyte’s closure will have on the community and, in the case of ownership

of the playing field, a lack of knowledge on the part of the Council of the local

position. This casts significant doubt as to whether the Council has had “ special

regard” to the likely effects of the proposed closure on the local community, as they

The Scottish Ministers consider that the Council appears to have underestimated the

level of community use currently and restricted the interpretation of that to non-

school related groups. The Council also relies on the use of the local Church as an

alternative venue, which based on the information provided by the respondents

After careful consideration, the Scottish Ministers have concluded that further

investigation is merited into the Council’s assessment of the impact of the

proposal (if implemented) on the local community. There may be a failure with

reference to section 17(2)(a) of the 2010 Act, that is, that Perth and Kinross Council

failed in a significant regard to comply with the requirements imposed on it by ( or

under) this Act so far as they are relevant in relation to the closure proposal, in that

they may have failed to have special regard to the factors for proposals for rural

school closures in terms of section 12(2) and (3) of the 2010 Act. It appears that the

potential failure would be a failure in a significant regard as the enhanced

protection for rural schools provided for in the 2010 Act requires the Council to

The conclusion section of the notice records that the Minsters are calling in the proposal

under section 17(2)(a) of the 2010 Act and sets out briefly the procedure that will follow.

[11] In submissions, Mr Mure made the general point that decision making about

education rested largely with the relevant local authorities in Scotland. Each local authority

runs the schools and handles the budget for their area. The decision making of each local

authority is subject to democratic oversight by elected individuals. It was also relevant to

these proceedings that 40% of Scottish primary schools are classed as rural schools. Under

reference to the documents produced in relation to the factual background, Senior Counsel

submitted that the Council had gone to considerable lengths to explore all of the options for

Abernyte before concluding that there was no available route for generating sufficient pupil

numbers. All statutory duties had been acknowledged and fulfilled. The statutory

consultation exercise had then been undertaken in accordance with all necessary

requirements, as illustrated in the various papers and reports, Nos 6/8, 6/9, 6/10, 6/11 and

6/12 of process. Sheena Devlin’s affidavit set out in considerable detail exactly what steps

were taken at each stage. Even before formulating their proposal in October 2018, the

Council had spent nearly two years in consultation and discussion with parents and

interested parties. Her Majesty’s Inspectorate of Education (HMIE) had agreed that the

proposal had some potential educational benefits, such benefits being something that the

Ministers’ own statutory guidance (No 6/2 of process at para 33) say should be at the heart

[12] Under reference to the call-in notice, Mr Mure submitted that it was interesting that

the first matter recorded was the number of representations. Further, only two of the large

number of relevant documents are referred to in the notice. An initial complaint that there

was no affidavit to support the respondents’ averment that all documentation provided by

the petitioner was considered had been to some extent superseded by the late lodging of an

affidavit by Mr O’Connell but the document apparently prepared by him, (No 7/1 of

process) was rather brief. It was noteworthy that the document ended with the words

“...pull together list of criticisms” and that the assessment was made on 7 June 2019 only ten

days after notification from the petitioner. The decision to call-in was not made until 16 July

and so it could not be correct that the respondents had insufficient time to seek input from

the council before deciding. It was also odd that Mr O’Connell’s affidavit stated (at para 2)

that the Options Appraisals (original and updated) were considered, when the original one

was not attached as a document, albeit that the report to the Committee was. It could be

that he had mistaken No 6/8 of process for an Options Appraisal. There was a concern that

the respondents were looking for “criticisms” rather than taking a balanced approach. The

context of the petitioner’s decision was that it had followed a three year process in fulfilment

of statutory obligations. In any event, the respondents’ assessment indicated a relatively

positive view of the proposal overall and Mr O’Connell’s affidavit failed to explain how the

respondents moved from that to the call-in decision. All that had changed was the receipt of

[13] Mr Mure spoke first to his general grounds of challenge to the decision issued on

16 July 2019. This concerned fairness of procedure and an alleged lack of adequate reasons.

It was acknowledged that the legislation does not oblige Ministers either to share

representations received by them with the local authority or to seek further information

from that authority before reaching a call-in decision. However it was still open to the court

to intervene if not satisfied that the process included the appropriate degree of procedural

fairness – Bank Mellat v Her Majesty’s Treasury [2014] 2 AC 700 at 777. In the circumstances

of this case, procedural fairness required Ministers to seek further information from the

petitioner, or at least to provide the petitioner with such representations as they had

received and considered might give rise to a call-in notice. Those circumstances included

the very limited grounds for call-in, the primary role of the petitioner as education authority,

the identified educational benefits of the proposal, the available power to seek further

information under section 17(3), the reliance on representations received by the respondents

and not provided to the petitioner, the 2010 Act’s failure to guarantee the petitioner a right

to participate in any proceedings before the Panel and the five year prohibition on a further

closure proposal under section 2A of the Act, with relative consequences for the petitioner’s

management of its school estate. In essence the petitioner had been denied an opportunity

to address any issues of detail that may have arisen from the representations made to

Ministers and there was no indication that the respondents took into account that previous

representations had been fully addressed. Any correspondence after the call-in notice could

[14] So far as the alleged inadequacy of reasons was concerned, it was not enough to

simply use the language of the statute. Reasons had to be clear, adequate and full. In

Comhairle Nan Eilean Siar (“CNES”) v Scottish Ministers 2013 SC 548 Lady Smith had clarified

that where reasons were given in a call-in notice, those reasons could be examined to see

whether they proceeded on a correct or incorrect basis in law. The respondents had omitted

to address whether the failure on the part of the local authority they had identified was

considered to be of the necessary degree, ie “in a significant regard”. The procedural

unfairness and reasons arguments in this case were general ones and should be considered

in light of the submissions on each of the three discrete grounds of review relative to (i)

financial information (ii) previous action to address pupil rolls and (iii) community impact.

[15] The focus of the argument for the petitioner on financial information was the

breakdown of the £330,000 figure, provided in Appendix 6 to the Consultation Report,

(No 6/11 of process), at p102. The reasons given in the call-in notice under this heading

included a reference to the petitioner’s possible overstatement of financial savings and a

statement that the £330,000 refurbishment costs were “outwith five years” in terms of

timescale. Mr Mure submitted that no basis was given in the notice for why Ministers

considered the anticipated costs for Abernyte to be “high” when costs for other schools in

the local authority area were comparable. Examples were given, including Greenloaning,

another “B” category school where up to £320,000 would require to be spent within 5 years,

as set out within No 6/7 of process. In any event there was a lack of detail in the notice as to

what estimates were said to be high. On the breakdown of the total figure of £330,000, the

figure represented a correct addition of the listed elements. The timing and priority of

particular works had to be regarded as approximate, as was the notion of “medium term”.

In context, even if the information was open to criticism, it could not reasonably be said to

amount to a “failure in a significant regard” which was the statutory test. In the sheriff court

decision in Highland Council v School Closure Review Panel 2016 SLT (Sh Ct) 207, that

expression had been interpreted as meaning “ in an important way”. In the present case,

there was no error in the raw information, let alone a failure in a significant or important

way, to comply with the statutory requirements. Had there been thought to be an error of

categorisation or arithmetic, the respondents could have resolved it with a simple telephone

[16] Further, it was clear from the Consultation Report (No 6/11 at pp15 and 17) that

issues with the school building and financial savings were not a material factor in the

closure proposal. That was the context in which the financial information, based as it was

on a template developed by COSLA and referred to in the Ministers’ own guidance, had

been prepared. It was not reasonable or proportionate for the respondents to state that there

may have been a failure in a significant regard in relation to the financial information.

[17] On the second discrete challenge, that of the reference in the notice to previous action

to address pupil rolls, the notice referred to section 13(2)(b) and (c) of the Act, which

imposed additional consultation requirements on relevant steps taken or at least an

explanation as to why none were taken. Senior Counsel submitted that the alleged failure

was merely one of description. Further, there seemed to be some confusion on the part of

the respondents between the Proposal Paper (No 6/10 of process) which contained the

formulated closure proposal and the Consultation Report (No 6/11) , prepared after

consultation had taken place. As might be expected it was the Proposal Paper that dealt

with this matter. It had to be read with the updated Options Appraisal, (No 6/9 of process),

which set out in detail the steps that had been taken to address the falling school roll at

Abernyte. The earlier Options Appraisal (No 6/5 of process) documented clearly the work

that had been carried out by the Council between 2016 and 2018 in this respect. The

catchment area had been reviewed as a possible alternative to closure. That was assessed

and a conclusion was reached that it was not a reasonable alternative. The process outcome

and reasons were also recorded in the later Options Appraisal (No 6/9 of process). In short,

the petitioner clearly had taken steps to address the falling school roll before it formulated

its closure proposal and had assessed reasonable alternatives. Section 12A(2)(c) of the Act

contemplated that there may be no reasonable alternative to closure and section 13 (2)(d)

refers to “any” reasonable alternatives identified. In the present case no reasonable

[18] Further, the fact that people had made representations asserting they have been

concerned about the matter since 2012 was of no assistance in judging whether the petitioner

had complied with section 13 of the Act and so was not a relevant factor. In any event the

petitioner had not seen those representations. Anticipating the respondents’ argument that

section 13(2)(b) was concerned with what steps had been taken “ in the past”, as opposed to

the period leading up to formulating the proposal, Mr Mure pointed out that the expression

“ pre-consultation” appears in the respondents own Guidance (No 6/2 of process at paras 22-

24). It was evident from paragraph 82 of the Guidance that “the past” was the period prior

to formulating the proposal. Standing the wealth of detail set out in the various reports and

appendices, it was unreasonable to suggest that the Council may have failed in a significant

regard to comply with the requirements of section 13(2)(b). In a report appended to the

Consultation Report, Education Scotland had recorded (No 6/11 at p100) that the Council

had given “due consideration to any reasonable alternatives”. In all the circumstances no

reasonable Minister would have concluded that the petitioner might have failed on this

[19] The final challenge related to that part of the notice dealing with community impact.

The primary submission was that this paragraph of the notice conflated two different issues,

that of the obligation to have special regard to rural factors in section 12 and the test of

failure “in a significant regard” under section 17(2)(a). The notice states in terms that the

Ministers consider that any failure to have special regard to rural factors would be a failure

in a significant regard. That was plainly not what the legislation stated and so was an error

of law. The term “special regard” was interpreted in Highland Council School v Closure

Review Panel 2016 SLT (Sh Ct) 207 as having its normal meaning, namely a greater or closer

consideration than usual. The substantive question was whether the respondents had

pointed to any evidence that the Council failed to have special regard to the likely effect on

the local community if the proposal was implemented. In terms of section 12(4), the effect is

to be assessed by particular reference to (a) the sustainability of the community and (b) the

availability of the school’s premises and its other facilities for use by the community.

[20] The Council had set out in detail its assessment of the impact of closure on the local

community in the Options Appraisal, the Proposal Paper and the Consultation Report.

What seems to have affected the respondents’ view on this matter also were the

representations which the petitioner had not seen and to which the legislation gave no right

to respond. The mere fact of representations being made on community impact did not

support the assertions in the notice on this issue. Ministers ought to have considered what

the Council had done by way of exploring and assessing the impact on the community

rather than focusing on representations made to them. In concentrating on the

representations, the notice contained no reference to any of the work undertaken and

documented by the council on community impact. This raised again the procedural

unfairness of relying on representations to which the Council was not permitted to respond.

On the specific issue of the ownership and use of the playing field, Sheena Devlin dealt with

this at paragraphs 84- 85 of her affidavit. It was clear that the field was not in the Council’s

ownership, something acknowledged in the Proposal Paper. Further information could

easily have been provided to Ministers had they requested it. In any event, it did not follow

automatically that community use of a playing field not owned by the Council would be

[21] The playing field issue was again demonstrative of the unfairness arising from a

process in which the Council had spent significant time and resources obtaining information

and consulting widely only for Ministers to receive other information at a very late stage

and rely on it without seeking any response from the Council. On the example of whether

the church might not be a suitable alternative venue, the Council had addressed this in both

the Proposal Paper (at section 10-8-10-13) and the Consultation Report (pages 36-37).

Community impact generally was considered at every stage and it could not be said that the

rural factor had not been given closer than normal consideration.

[22] Finally, under reference to the decision in IBA Healthcare Limited v OFT and others

[2004] ICR 1364, which Mr Mure anticipated would be relied on by the respondents, it was

submitted that where a legislative provision includes a test that a party believes something

“may” be the case, such a belief had to be reasonably held and based on the facts before that

party. In that case the Court of Appeal had been looking at a particular statute in context

and while one couldn’t just read across to the statute under discussion here, the similarity

was that it concerned a review of a gatekeeping role, as the OFT was the gatekeeper in

relation to a reference to the Competition Appeal Tribunal. Mr Mure submitted that the

court was entitled to enquire whether the Minsters had adequate material to support the

[23] Ms Ross invited dismissal of the petition and presented her submissions in three

chapters. First she addressed the chronology and legal framework, including the role of the

petitioner and of Ministers. Then she responded to the petitioner’s general grounds and

then dealt with each of the specific grounds in the decision letter. On the first matter, much

of the chronology was agreed, but it was noteworthy that on 8 and 14 August 2019 the

School Closures Review Panel (“the panel”) had written to the petitioner requesting further

information. The statutory framework carries with it an expectation that information will be

sought by the panel, despite the reference in Sheena Devlin’s affidavit (at para 88) to there

being no “role” for the Council in that process. Prior to the petitioner raising proceedings

the panel had intimated the date by which a decision would be made. Interim suspension of

the panel proceedings was then granted unopposed on 21 August 2019. The importance of

the 2010 Act was that it set up a complete scheme for the consultation process that may or

may not lead to a school closure. Each body, the education authority, Scottish Ministers and

the panel has specified duties and responsibilities within the scheme. Parliament has

achieved a careful balance between the primacy of the local authority’s educational duties

and the need for oversight by Scottish Ministers and separately the panel in appropriate

cases. As was recognised in CNES v Scottish Ministers 2013 SC 548, “… the Ministers’ role is

one of safeguarder in relation to the core objective of securing genuine consultation”. The

legislation should not be interpreted in a way that gives the local authority the benefit of the

doubt because of its duties as an education authority. The petitioner’s approach in this case

appeared to be that because of the enormous time and effort undertaken the court should

not trespass on its responsibility. That ignored the central feature of the legislative

provisions as a check on local authority decision making, primarily in relation to

[24] The introduction of an independent review body, the panel, by the 2014 Act

amendment was significant. It restricts the role of Ministers to the calling-in decision,

whereas they had previously also conducted the review that is now exclusively the panel’s

task. Any consultation must be meaningful in the sense that account has to be taken of what

one has been told by the consultee. It is not sufficient for the petitioner to show that it has

consulted, rather it must illustrate that it has satisfied all of the requirements of the 2010 Act.

Other changes to the 2010 Act by the 2014 Act were also significant, including the

introduction of the statutory presumption against rural school closure in section 11A and the

requirement to include information about financial implications of a closure proposal in

section 4(2A). On consideration of alternatives in a rural school context, it was important to

understand that the requirement for the local authority to identify reasons for a proposal

was distinct from consideration of alternatives, as was evident from the list in section 13(a)-

(e). The identification of alternatives and the carrying out of a catchment review did not

amount to reasons. Finally, the role of the panel is to perform an independent review

function within a reasonably short time frame. The maximum period allowed for a decision

is sixteen weeks from initial constitution of the panel. But for these proceedings, the panel

[25] It was noteworthy that there is no suggestion from the petitioner either that the

legislation itself is flawed or that the panel has acted improperly. The petitioner’s objections

on the basis of procedural unfairness and reasons lose force when the reality of the

legislative scheme is considered. Information can be sought by the panel and that is what

happened. Crucially, the panel is the body that makes the decision on whether there has

been a failure of the type described in section 17B and must give reasons for its decision in

terms of section 17C(2). It is now clear that Scottish Minsters’ decision making is effectively

procedural, with the panel making the only substantive decision. The test for Minsters in

section 17(2)(a) is watered down not only by the word “ may” but also by the word “

appears”, something not as definite as “believes”, which was the statutory wording in the

legislation under discussion in the case of IBA Healthcare Limited v OFT and others [2004] ICR

1364. So far as the affidavit of the petitioner’s director Sheena Devlin was concerned, there

was no difficulty with the factual account of what took place. The affidavit seems to

suggest, however, (at paras 86-87) that because a call-in notice will have an impact on the

plan and will be widely known it somehow shouldn’t have been issued. Calling-in is a

feature of the statutory scheme and so cannot be regarded as something to be avoided. It

creates a necessary hiatus for a limited period to enable proper scrutiny by the independent

[26] The main contention of the petitioner’s general unfairness ground seemed to be that

the respondents did not seek the petitioner’s comment on the representations made.

However, the respondents had done exactly what was required by the statute. Section 15(4)

obliged them to take representations made within three weeks into account and some

52 representations had been received during that period. Scottish Ministers are not required

to take account of the local authority’s view on or response to those representations and so

no issue can properly be taken with account being taken of such representations in reaching

a call-in decision. Against a background of calling-in being a procedural step only, this

approach made sense. The duties of the panel and the right of appeal to the sheriff provided

an effective procedural guarantee to local authorities. In Rees v Crane [1994] 2AC 173

Lord Slynn (at p191) listed some of the circumstances in which natural justice does not

require that a person be told of the complaints made against him. These include where an

investigation is purely preliminary, where there will be a full chance to deal with the

complaints later. Although the context of that case was very different, the education

authority in this case was very familiar with the statutory scheme and knew that there was a

period after notification when representations might be received by Ministers that could

lead to call-in. If the petitioner’s position is that more information could have been

provided, the proper forum for that will be the panel. Any other system would involve

delay while the respondents sent representations to the petitioner, allowed them a period to

respond and then consider all of that before even taking the procedural decision on calling-

in. It is for the panel not Ministers to reach a concluded view on such matters, not for

duplication of work as between Minsters and the panel. There could be no question of

Ministers resolving the differences between the representations and the petitioner’s

paperwork. The documentation lodged at No 7/2 of process illustrated the issues raised

with Minsters in the representations made to them. The respondents picked out the main

points and noted them as part of the obligation under section 15(4) to take them into

account. Many raised mixed questions of fact and opinion. Although there are

circumstances in which Ministers can seek further information from the local authority as

envisaged in section 17(3), this would normally be impractical because of the strict timescale

[27] Insofar as there was a reasons challenge, senior counsel submitted that, leaving aside

the arguments on whether the petitioner could point to any errors in the notice, the

respondents couldn’t be meaningfully criticised for a lack of reasons. On the face of the

notice there are reasons given. On the issue of whether the Ministers had failed to address

all of the information provided by the Council, Mr O’Connell’s affidavit now narrated the

position, but it was pled from the outset in Answer 12 and dealt with in the note of

argument. It wouldn’t usually be necessary for the respondents to have to confirm the

position pled on instructions in a matter of this sort. The affidavit is brief and simply

confirms that the respondents’ decision maker looked at all of the documents submitted.

Those mentioned by name in the call-in notice could not be read as an exhaustive list. It was

clear enough from Mr O’Connell’s working paper (No 7/1 of process), that the Options

[28] On the first of the specific discrete grounds of challenge, the financial information,

Ms Ross submitted that the respondents had identified, accurately, an issue involving the

inclusion of present and future costs. In the Proposal Paper (No 6/10) at para 4.12, the

petitioner recorded that the approximate cost of upgrading the school building was

£330,000. The works listed were said to be “ ..not required immediately but in the medium

term which is 2-5 years”. As planned and unplanned maintenance in the three years leading

up to the paper had been £14,144 , the respondents had been justified in making a general

comment that the £330,000 figure seemed high for a “ B” condition school. While it is

contended for the petitioner that the closure decision was not on financial grounds, it is not

for officials preparing a paper to say what is important. The closure proposal read as a

whole included a reference to costs. In the Consultation Report (No 6/11) there is a

breakdown (at p 110-111) of the £330,000 figure. After noting that there are no priority 1

items (ie requiring immediate work) the report listed the essential priority 2 work that

requires to be done within two years, at a cost of £183,621. Then as priority 3 there was

work listed as being required within 3-5 years, at a cost of £51,598. Taken together the cost

of works required within 5 years was far less than £ 330,000. While long term work for

beyond five years is then listed as priority 4, there appeared to be work that was listed twice,

once in priority 3 and again in priority 4 (boiler replacement). These discrepancies between

the statement in the Proposal Paper and the breakdown in the Consultation Report

amounted to sufficient cause for concern and for the respondents to give pause to the issue

of financial information. The petitioner’s submission that the addition was accurate (if one

included the priority 4 figures) made no difference, the concern remained that the

information given to councillors who made the decision was incorrect. Such a failure was

[29] On the second challenge to the notice, the paragraph on previous action about falling

school rolls, senior counsel submitted that a distinction had to be drawn between the

subparagraphs of section 13(2) that list certain additional matters that require to be

addressed in a proposal relating to closure of a rural school. In particular, section 13(2)(b)

requires a description of steps taken to address issues that (later) led to a proposal and so

relates to a period before the formulation of that proposal and not simply the time leading

up to the proposal. In contrast, section 13(2)(d) requires the education authority to set out

any alternatives to the identified proposal, something that is applicable only at that later

stage. The related requirement in 13(2)(c) to explain why it did not take such steps where

that was applicable was also important. The need to look at steps taken in the past is

confirmed by the respondents’ guidance (No 6/2 of process at para 82) in relation to

section 13(2)(b), which records the example of a falling school roll and the need to

understand what action, if any, the authority has taken in the past to seek to address that. A

review of the catchment area did not satisfy this statutory requirement as it would fall

within the subsequent stages listed in section 13(2)(d)-(f). As the falling school roll was the

principal reason for the school closure proposal, the apparent failure to comply with

section 13(2)(b) and (c) was significant and so the test in section 17(2)(a) was also satisfied in

[30] On the third and final discrete challenge to the notice, that of community impact,

there were two issues. First, the respondents had recorded a “significant distance” between

the community and the local authority. This was evident from the significant number of

representations the respondents received. Community impact was a strong thread running

through those representations (summarised in No 7/2 of process) and so had to be

considered. In the Consultation report the petitioner claimed (No 6/10 at p 36) that declaring

the school to be surplus to the local authority’s requirements would present an opportunity

to use the school as part of a community asset transfer. That was at best speculative and

seemed to be challenged in the representations, as did the councils’ view on practicability of

using the local church as an alternative venue for community events. Secondly, there was

the issue of the playing field. It was sufficient for the respondents to identify a lack of

knowledge on the part of the local authority during the process as to who owned the field

because it fed into the concern about the petitioner’s conclusion that the school closure

would have little community impact, in contrast with the views expressed in many of the

representations. The respondents could only have reached a different conclusion on this by

ignoring the large number of representations, make an assumption that the council was

correct in its view of community impact and decide not to call-in the proposal. Against that,

all that was required to call-in was that it appeared to the respondents that there may have

been a failure in a significant regard on this matter, a test that was clearly satisfied.

[31] On the alleged error in the paragraph in the call-in notice on community impact,

Ms Ross pointed out that having special regard to the factors listed in section 12 (which

include community impact) when considering a rural school closure was a statutory

requirement and so that was an accurate statement. Having special regard was not

synonymous with a special requirement or of a significant requirement. The “in a

significant regard” provision in section 17(2)(a) relates to the potential failure and not to the

requirement on rural schools. The sentence alighted upon as an alleged error had to be read

in context. It was clear that the view was that a failure to have special regard to community

impact would be a failure in a significant regard because the issue of community impact is

given importance in the statute. It was going too far to suggest that there had been a

fundamental conflation of the two separate concepts. In any event, even if this final

comment in the letter could be said to be erroneously drafted, it could not undermine the

decision as a whole. It related to one of three separate aspects, any one of which would have

been sufficient to call-in. The overall conclusion is correctly stated and there was no

material error in the paragraph on community impact of a type that could vitiate the

respondents’’ decision. It would be for the panel to decide whether there had been any

failure and if so whether the test of “in a significant regard” was met.

[32] The petitioner, as education authority for Perth and Kinross has a duty to ensure that

adequate and efficient school education is provided by the state throughout the local

authority area. Decisions about such provision are, as Lady Smith pointed out in the case of

CNES v Scottish Ministers 2013 SC 548 best taken locally when possible. This case is

concerned with the circumstances in which there may be a review of local decision making

on school closure where it appears to Scottish Ministers that there may have been a failure in

a significant regard to comply with the detailed requirements of the 2010 Act. The principal

purpose of the legislation, as narrated in the respondents’ guidance (No 6/2 at para 3), is to

“provide strong, accountable statutory consultation practices and procedures …

consultation processes are expected to be robust, open, transparent and fair, and seen to be

so”. Since certain amendments to the scheme were made by the 2014 Act, those

requirements are more stringent where rural schools are concerned. When the Extra

Division decided the CNES v Scottish Minsters case there was no statutory presumption

against rural school closure, something now contained in section 11A of the 2010 Act. The

presumption is described in the respondents’ guidance (No 6/2 of process, para 4) as a

procedural presumption, because it can of course be overcome by meeting the detailed

requirements of sections 12 and 13. Additionally, at that time Scottish Ministers took the

decisions both on calling in and on the subsequent substantive review of the education

authority’s decision. Under the amended Act, the formation of a panel, independent of

government, to take the determination on closure where the local authority’s decision has

been called-in by Ministers, avoids any suggestion of political justification for that

substantive decision. So, the initial consultation, proposal making and decision on that

proposal is carried out by the local authority, Scottish Ministers then decide whether, on an

application of the test in section 17 of the 2010 Act the closure proposal should be called-in

and if so the panel alone has the task of deciding whether there have in fact been failures of

a type described in the legislation such that the local authority decision must be reviewed.

In that tripartite exercise, it is the intermediate stage of deciding whether there is a “case to

try” on failure in a significant regard to comply with the statutory requirements that is

[33] The petitioner makes overarching complaints of procedural unfairness and

inadequate reasons that are said to vitiate the decision reached by the respondents. The

main thrust of the argument is that, in the circumstances of this case, procedural fairness

required Ministers to seek further information of the petitioner or at least ask for comment

on such representations as had been received and might give rise to a call-in notice. It is of

course always open to the court to intervene if there is a lack of procedural fairness, even in

the context of a statutory scheme. However, in Bank Mellat v HM Treasury [2014] 2 AC 700,

an authority prayed in aid on this point by the petitioner, it was also emphasised that before

the court would take the unusual step of supplementing procedure laid down in legislation,

it would have to be “clear that the statutory procedure is insufficient to achieve justice and

that to require additional steps would not frustrate the apparent purpose of the legislation”

– per Lord Sumption at p777,citing Lord Reid in Wiseman v Borneman [1971] AC 297 at 308.

In the legislative scheme under discussion in this case, the Scottish Ministers are conducting

a safeguarding or gatekeeping function. Their decision is not one that disposes of the

substantive issue of whether the petitioner’s decision on closure of a school was taken in

accordance with legislative requirements, but only whether there are grounds for remitting

the question of whether there has been a relevant failure to the independent panel. In the

context of the 2010 Act and its purpose, it can easily be concluded that the absence of a

procedural requirement on the respondents to engage with the local authority before

reaching a decision on calling-in is not a barrier to achieving fairness. The local authority

will have submitted all the material on which it relied in making the decision on the

proposal and the respondents require to consider that against any representations made.

Ministers do not require to reconcile the differences between the different positions stated

by the council and those making representations because they are not making a

determination as between conflicting positions. The exercise in which Scottish Ministers are

engaged is in identifying whether there appears to be a basis for stating that the local

authority may have failed to comply with the legislative requirements in a significant way.

If there is such a basis, it will be for the panel to reconcile conflicts between the different

positions and reach a determination. The main consequence for the petitioner of the

respondents’ decision to call-in is a delay which, but for these proceedings, would have been

measured in weeks. In the context of the Ministers’ decision being itself a procedural one

and a step in the larger process and in the absence of any challenge to the legislative scheme,

I do not consider that the absence of further input from the education authority on any of

the points raised amounted to procedural unfairness. Once the different roles of the

education authority, the Scottish Ministers and the panel are properly understood, it

becomes apparent that the call-in stage is one of those situations in which there is clear

justification for departure from the usual rule that someone knows of and is given a chance

to respond to complaints against them as it is only a step in a larger process and not the

ultimate decision (Rees v Crane, supra, at p 191 G-H and 192 A-B). I reject the complaints of

procedural unfairness made by the petitioner. On the associated reasons challenge, I have

narrated the relevant passages of the notice that give reasons. While the quality of the

reasoning forms part of the argument in relation to the treatment by the respondents on each

of the three discrete grounds and will be examined in that context, it cannot be said that

there was any general failure on the part of the respondents to give reasons for their

[34] I turn now to the test that Ministers had to apply in deciding whether there was a

basis to call-in the petitioner’s decision on the proposed closure of Abernyte. Section 17(2)

provides that it must “appear” to the respondents that the petitioner “may” have failed “in a

significant regard” to comply with the requirements imposed on it by the Act. In Office of

Fair Trading and others v IBA Health Limited [2004] ICR 1364, Morritt V-C in the Court of

Appeal thought it clear that a test including the words “may be the case” excluded the

purely fanciful, but that “In between the fanciful and a degree of likelihood less than 50%

there is a wide margin in which [the decision maker] is required to exercise its judgment”.

The test in the 2010 Act represents on any view a low threshold, entirely consistent with the

tripartite exercise involved. The local authority has made its decision, subject only to the

call-in and review provisions and so scrutiny by the respondents of the material upon which

that decision was based is part of the assessment under section 17(2). The other part is to

consider any representations made during the period referred to in section 15(4). There can

be no objection to the process being one of collating criticisms because if there are no

perceived relevant failures on the part of the local authority there can be no calling-in of

their decision on the closure proposal. It is necessary that the terms of the call-in notice go

further than a mere reference to section 17(2)(a), it must make clear both that the

respondents are satisfied there may be a relevant failure and that any such failure is of the

requisite degree of “in a significant regard” - CNES v Scottish Ministers 2013 SC 548 at

para 44. There is no suggestion that the respondents failed to address both issues in this

case. The call-in notice identifies three separate matters on which the Minsters consider that

there may be a failure to comply with the relevant requirements of the 2010 Act. I turn now

to examine each of the challenges to these three separate sections to see whether or not they

are illustrative of error in the manner contended by the petitioner. I deal with this on the

basis that I have already rejected any suggestion that it was procedurally unfair or contrary

to natural justice for the decision to be made without sharing the representations or seeking

[35] The petitioner contends that insofar as the notice founds on section 17(2)(a) in respect

of financial information it is irrational, disproportionate and unreasonable and that the

reasons given are irrational and inadequate. While financial considerations may not have

been material factors in the petitioner’s closure proposal for Abernyte, the respondents were

in my view both entitled and obliged to consider this matter. The requirement for a

Proposal Paper to contain information about the financial implications of the proposal is not

restricted to rural school closure proposals – section 4(2A) of the 2010 Act. The provision of

inaccurate information would certainly suggest that there may be a failure to comply with

that requirement. The education authority produces documents on which councillors must

be able to rely in reaching a decision on a closure proposal. It seems to be accepted by the

petitioner that, reading the Proposal Paper and Consultation Paper on this together, there

are inaccuracies, at least to the extent that there was duplication of certain work as between

priority 3 and 4 and that some of the work would take place outwith the 2-5 year period

specified for all of the £330,090 cost in the Proposal Paper. The petitioner’s reliance on the

accuracy of the arithmetic in the Consultation Paper does not resolve the inconsistency. The

respondents’ tentative view that the petitioner has overstated the savings that would result

from the closure of Abernyte is justified by an analysis of the papers, which illustrate that

using the petitioner’s own figures, the cost of refurbishment over the next five years would

be significantly less than £330,090 (by at least £90,000, more if the duplication point is

resolved by priority 3 costs being overstated). The general comment that the costs seemed

high for a “B” condition school was also criticised by reference to refurbishment costs of

other schools, referred to in Sheena Devlin’s affidavit at paragraphs 78-80. In the context of

a comparison with total spending of £14,144 on the property over the previous three years,

however, the comment seems reasonable. That the apparent failure seemed to the

respondents to meet the necessary degree of “in a significant regard” is perfectly rational in

[36] On the second challenge to the notice in relation to steps taken to address falling

school rolls, the petitioner’s position is that there is no evident failure and even if there was

it would only be a failure in description. It seems to me that the petitioner’s submission

about this aspect overlooked that section 13 includes statutory requirements that, if there

appears to be a failure to comply with them, it raises a relevant concern under

section 17(1)(a), albeit that the degree of failure would still require to be addressed.

Referring to it as merely an alleged failure of description belies the purpose of that

description, which is to allow analysis not just of whether any steps were taken to address

the problem of the falling school roll but also to consider any explanation as to why no such

steps were taken if that was the case. If the documentation does not state whether steps

were taken, the subsequent analysis of looking at an explanation for that cannot take place. I

accept Ms Ross’ submission on the distinction between section 13(2)(a)-(c) and (d)-(f)

respectively. In the Proposal Paper, the local authority must, after explaining the reasons for

the closure proposal, provide retrospective information about what steps it took to address

those reasons (here principally falling school roll) “ before formulating the proposal”, a clear

reference to a period prior to even considering that closure might be an option. These

additional requirements for rural schools flow naturally from the procedural presumption

against rural school closure introduced by section 11A. The starting point for a local

authority must be to address a falling school roll in a way that avoids the spectre of closure.

Only if the problem can’t be addressed, and the local authority can explain why that was,

can it properly move to the next stage. Identification of alternatives is not synonymous with

addressing a problem and is part of the later stage. Conducting a review of a catchment area

is not tantamount to addressing a falling school roll problem; making alterations to a

catchment area would be different and could well constitute an attempt to address the issue.

The reference to representations in this paragraph links the failure that emerges from the

paperwork to the probable importance of that apparent failure. If, as the representations

state, the local community had raised concerns from 2012 about this issue and no steps were

taken, evidence of that will have to be considered carefully by the panel. In the context of

Ministers not being the final arbiters on this or any other issue, all that was required was a

tentative view based on the available material. Against that background the respondents

were entitled to conclude that there may have been a failure in a significant regard in

[37] Turning to the last of three specific challenges, that of community impact, the

petitioner contends that the respondents again placed too much emphasis on

representations received and to which the council had no opportunity to respond. For all

the reasons already given, this was not procedurally unfair in the context of the role of

Ministers at the call-in stage. Community impact is one of the factors to which the education

authority must have “special regard” when making a closure proposal in relation to a rural

school. Axiomatically, a large number of strongly expressed views by members of the

community on the perceived impact will be a relevant factor, albeit that at the later stage of a

panel determination on whether there has been a failure in a significant regard on this issue,

they will require to be more critically assessed. In my view it was sufficient for the

respondents at this stage to note the considerable distance between the council and the

community residents on this issue, together with identification of two examples that give

rise to a concern about statutory compliance before concluding that the modest test in

section 17(2)(a) was engaged. The two examples, that of the council’s error in relation to

ownership of the playing field and the dispute about whether the local church was a suitable

alternative venue for larger events, are clearly relevant to the issue of community impact.

The ownership position in relation to the playing field stated in the Proposal Paper was not

formally retracted in the Consultation Paper (see No 6/11 at para 8.12), although it is there

stated that if there was an error it was not a material consideration. But the issue was

whether the field was owned by a community group or an individual, something that on the

face of it would make a difference to its likely availability to the community. It was perfectly

reasonable for the respondents to be concerned about the lack of clarity on this point. The

dispute about the extent to which the church would provide an adequate alternative venue

for community events was similarly unresolved. Assertions by the local authority in the

reports are not a sufficient basis to resolve such issues. They can be resolved by the panel as

[38] However, the petitioner raised an issue of alleged error in law in this last challenge

that merits separate consideration. In the conclusion on community impact, the notice states

that there may be a failure under reference to the relevant statutory test, that possible failure

being to have special regard to the factors for rural school closures. Then it states “It

appears that the potential failure would be a failure in a significant regard as the enhanced

protections for rural schools … in the 2010 Act requires the Council to have “special regard”

to rural factors.” Senior Counsel for the petitioner argued eloquently that this was

illustrative of an error of law because it conflated the concepts of “special regard” and

“significant regard” when the legislation made no such link or created any such

inevitability. It is undoubtedly the case that an apparent failure to comply with any of the

statutory requirements is just that, it is not a failure to any particular degree. The sentence is

oddly expressed and could be interpreted as meaning that the respondents considered that

every failure, however small or insignificant, to have special regard for a rural factor would

be a failure of the necessary degree to call-in the closure proposal. That would be wrong. Of

course as the statute as amended does place particular emphasis on rural schools, by

imposing the procedural presumption and associated additional requirements, including

those in section 12(2) and (3), it is incumbent on the respondents to consider those with care

and to flag up any perceived inadequacies in the council’s obligation to have special regard

to them. Whether a failure to have special regard to the rural factors is significant would

depend on whether the perceived failure is trivial or not. Having considered this particular

sentence and the submissions made, I conclude that, while it overstates matters to view the

respondents as having confused or combined the two separate notions of “in a significant

regard” and “special regard”, the sentence is inappropriately and ambiguously expressed.

The importance placed on rural factors could lead to a conclusion that unless the perceived

failure is trifling it may be regarded as significant. Much depends on what the apparent

failure is. However, the use of the word “would” coupled with the conjunctive “as” appears

to indicate it being a necessary conclusion that any failure in this respect is a failure in a

significant regard. On balance, therefore, I will treat the last sentence as erroneously

expressed. Two relative issues then arise, namely whether the error is material and secondly

whether, if it is, it vitiates either the relevant section or even the decision as a whole?

[39] The role of the respondents was to ascertain whether any perceived failure “may” be

a failure in a significant regard. The erroneous use of “would” rather than “could” or “may”

must lead to a close analysis of the rest of the paragraph and the letter as a whole so that it is

understood both in the context of the community impact section and that section in its place

and context in the letter. What matters above all is whether the respondents applied the

correct test. I conclude that they did. First, the last sentence of the section comes after a

correct statement of applicable test in section 17(2)(a), with appropriate reference to the use

of the terms “ may be a failure” and “ in a significant regard”. Secondly, there are references

earlier in the section that illustrate an understanding that trivial points or gaps in knowledge

by the council would not matter (and so not meet the test). For example there is reference to

the “significant distance” between the local authority and the community in relation to the

community impact issue generally, a reference to the large number of responses on this

point and the strength of feeling that the Council had misunderstood the position. Further,

the uncertainty about the ownership of the playing field is also said to cast “significant

doubt” as to whether the council has complied with the special regard test in section 12(2)

and (3)(b) of the Act and for the reasons given the conclusion the council reached regarding

the use of the church may also be wrong. Taken together, these examples highlight the issue

as an important one because the differences are not merely of detail but suggest that the

Council’s approach to this statutory requirement lacked rigour on matters that were of real

concern locally. There is sufficient in the narrative of the section prior to the unhappily

worded last sentence for me to conclude with some confidence that the respondents did not

misunderstand the test and so the error in expression in the final sentence is not a material

[40] It follows from the conclusion just given that there is no material error such as to

vitiate the section under discussion, far less the decision as a whole. In any event, I would

not have regarded the error as fatal to the decision overall. The correct statutory test for call-

in is enunciated on page 1 of the notice and at the end of each discrete section. The

respondents could call-in the proposal under any of those three separate grounds. Only if all

three sections contained material errors or other general grounds for review had been made

out, could the whole decision be reduced. For the reasons already given, I have rejected the

petitioner’s arguments about general procedural unfairness and also in relation to the first

two discrete challenges. The last sentence of the community impact section of the notice

adds nothing to what has gone before in that section and in context is not a material error.

[42] For completeness I should add a note about Mr O’Connell’s affidavit, which was

produced by the respondents and lodged, under some protest from the petitioner, after the

Scottish Ministers had sight of the petitioner’s speaking note. That note criticised the lack of

an affidavit supporting the averment (in Answer 12) that the respondents had considered all

of the paperwork. No 7/1 of process, which was lodged timeously, comprises

Mr O’Connell’s assessment of the points arising from that paperwork. It is sufficient to

record that I would have been content to deal with the arguments without Mr O’Connell’s

affidavit and to proceed on the basis of the averment made on instruction, given the nature

[41] For all of the reasons given, I will sustain the respondents’ first plea in law and

dismiss the petition, reserving meantime all questions of expenses.

Scottish Court of Session Decisions