Approved Judgment
to be considered the absence of a formally-negotiated stopping policy. As indicated above, at the moment there is an informal policy of limited toleration of encampments. There is only the very beginning of a negotiated stopping policy. It is very difficult to supervise an informal policy of limited toleration of encampments… The court going forward needs to scrutinise very carefully that the local authority is taking steps to procure a formal, negotiated stopping policy .” 49. Perhaps unsurprisingly, in those circumstances, Ms Brimelow held at [25]-[26] in her judgment that she should follow Freedman J’s requirement that there be “ close scrutiny of whether there remained a compelling need for the granting of a further injunction ” and “ in these circumstances, I consider the case should be heard de novo and so invited submissions in line with it being a de novo hearing .” 50. In Test Valley Borough Council & Anr v Persons Unknown (unreported), HHJ Sarah Richardson (sitting as a deputy), considered the point at length and gave a detailed ex tempore judgment of which I was provided with a note (no transcript being presently available). She held that the correct test to apply on an annual review is that identified in the authorities of HS2, TfL and Valero , namely, the Court should ask whether there has been a material change of circumstances. If there has not, and all procedural and legal rigour has been followed, the Order should be continued. If there has, only then should a full Wolverhampton assessment be conducted to determine whether the relief should be continued, and on what terms. The Judge took the view that the HS2 approach, as adopted in TfL and Valero was principled and in keeping with the Wolverhampton guidance, and was the correct approach to review hearings of this nature. The court should not perform a full Wolverhampton assessment on review unless there is a material change of circumstances that necessitates the same. 51. In my judgment the correct approach is dictated by the Supreme Court’s judgment in Wolverhampton and in particular in [225]. This is not a “tick box” exercise, but the matters on which evidence should be adduced and argument focused are (i) how effective the order has been; (ii) whether any reasons or grounds for its discharge have emerged; (iii) whether there is any proper justification for its continuance; and (iv) whether and on what basis a further order ought to be made. The parties should give full disclosure, supported by appropriate evidence, directed towards those questions. 52. There will be cases, such as Basingstoke , where an issue has emerged, whether at the original hearing or in preparation for the renewed hearing, which needs to be addressed expressly at that renewal hearing. Whether that necessitates an expanded renewal hearing or what Ms Brimalow calls a de novo hearing will depend on the facts. The position may also be different where the application for further injunctive relief is not made during the currency of the previous order, but after it has expired. But the guiding light will always be the Supreme Court’s judgment in Wolverhampton . Discussion 53. I address in turn what seem to me the appropriate elements of the analysis, namely: i) The existence of any material change of circumstances; ii) The efficacy of the order to date;
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