R v Rent Officer for London Borough of Camden, ex parte Plant and others

Rent Act 1977 — Whether a letting a holiday letting for the purpose of section 9 — Case also illustrating legal questions affecting a rent officer’s duty when faced with jurisdictional issues; the use of the procedure of judicial review to determine private disputes, requiring deponents to affidavits to be examined orally in court and subjected to cross-examination; and an exceptional resort to the remedy of declaration under Order 53, rule 1 (2) to decide a matter suitable for determination by the county court under section 141 of the Rent Act 1977 — Applications against rent officer for mandamus to hold a consultation and for a declaration that various applicants were protected or statutory tenants — Object to secure a registration of fair rent before November 28 1980 when it was expected that certain changes made by the Housing Act 1980 would come into operation, restricting inter alia a tenant’s right to recover rent paid in excess of the registered rent to a period beginning with the date of registration instead of the date of application to the rent officer — Held on the evidence that the only tenancy with which the court was concerned was not for the purpose of occupation for a holiday within section 9 — The tenant and her fellow occupants were student nurses and students of psychology and dentistry pursuing their various courses with a view to the securing of their professional qualifications — Held also that in this quite exceptional case, where delay might lead to injustice, the court would grant an order of mandamus to the rent officer to hold a consultation and register a rent and a declaration that the applicant was a protected tenant within the meaning of the Rent Act 1977 In these proceedings five applicants occupying a flat at 72b Fleet Road, Hampstead, London NW3, sought an order of mandamus directed to a rent officer for the London Borough of Camden to direct him to take steps to hold a consultation under the provisions of the Rent Act 1977, or alternatively to register a fair rent under the Act. They also sought a declaration that the applicants were protected or statutory tenants. It was established during the hearing that the court was in fact concerned with the position of only one tenancy, that of Miss Hilary Plant, a student nurse. The issue was whether this tenancy was protected or was excluded from protection under section 9 of the 1977 Act because the purpose was to confer on the tenant the right to occupy the dwelling-house for a holiday. Mrs T Moorhouse (instructed by Nic Madge, Camden Community Law Centre) appeared on behalf of the applicants; J Goudie (instructed by Philip Thornton & Co) represented the respondent landlord, Peter Simon; John Laws (instructed by the Treasury Solicitor) represented the rent officer. Giving judgment, GLIDEWELL J said: These five applicants occupy a flat at 72b Fleet Road, Hampstead NW3, which is owned by the second respondent, Peter Simon. They claim that they all are, or alternatively that one of them, Miss Plant, is, protected tenants or a protected tenant of that flat under the Rent Act 1977 and thus are entitled by law to apply to the rent officer to register a fair rent. Mr Simon maintains that they are not protected tenants because, as he accurately points out, the written agreement which Miss Plant signed in October 1979 specifically says that the tenant has the right to occupy and use the flat for the purposes of a holiday. The applicants have applied to the first respondent, the rent officer for the London Borough of Camden, to register a fair rent. For reasons which I shall explain shortly, he has declined to take the necessary steps towards doing so. The applicants therefore come before me seeking orders first of mandamus directed to the rent officer requiring him to serve a notice on the applicants and upon Mr Simon to hold a consultation under the appropriate provisions of the 1977 Rent Act, or alternatively, to register under the appropriate provisions of that Act a fair rent; and, secondly, for a declaration that the applicants are protected or statutory tenants within the meaning of the Rent Act 1977. The issue between the applicants and Mr Simon is whether or not all the applicants are, or Miss Plant is, a tenant to whom section 9 of the 1977 Rent Act applies in relation to the tenancy. Section 9 of the Act reads: A tenancy is not a protected tenancy if the purpose of the tenancy is to confer on the tenant the right to occupy the dwelling-house for a holiday. There has, not unnaturally, grown up the use of the expression, ‘a holiday letting’, but like all short expressions it is capable of being misunderstood, and what the court has to do is to look back to the wording of the section. I have to, if I grapple with this question at all, as I have already indicated I am going to, decide whether the purpose of the tenancy was to confer on the tenant the right to occupy the dwelling-house for a holiday. Obviously, where this question is in issue, it must be determined by somebody before the rent officer has jurisdiction to proceed with the process of registering a fair rent. When the facts are put before the rent officer he may, on those facts, determine and decide himself that he either has or has not jurisdiction. Certainly if he decides that it is a letting that falls within section 9 and thus he has not got jurisdiction, he is entitled, and there are decisions of the courts to the effect that he should so decide, to decline to register the rent. Mr Goudie urges that if the facts tend to show that the tenancy may not fall within section 9, it would be at any rate ill-advised of the rent officer to make a decision at all, but certainly he might do so. But if he finds that he has any real difficulty in deciding that matter, then the court has said that he should not do so; that he should decline to do so; and leave whichever party has made the application to take appropriate steps. Now whether or not he does make a decision, and whatever decision he makes, there is a procedure for dealing with the matter in the court, because section 141 of the 1977 Act specifically provides for an application to be made to the county court to decide a series of different questions arising under the Act, one of which is as to whether the tenancy is a protected tenancy. And thus the question whether or not a tenancy falls within section 9 of the Act, which is the point under consideration here, which may or may not result in its being a protected tenancy, is one which could, and in the ordinary case should, be determined by way of an application to the county court under section 141. I have been referred in Mr Laws’s very clear argument — and having characterised his argument in that way, may I say that all74 learned counsel have been of the greatest assistance to me in the clarity of the arguments that they have put before me — I have been referred by Mr Laws to three authorities that deal with the question ‘What is the proper procedure for determining an issue such as this?’  They are: R v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek [1951] 2 KB 1, R v Rent Officer for Kensington and Chelsea, ex parte Noel [1977] 1 All ER 356, and a very recent decision (and by recent, I mean last week) of the Divisional Court, Donaldson L J and Forbes J in the case of R v Rent Officer for London Borough of Camden, ex parte Ebiri*, in which, taking the three decisions together, the court laid down the principles that I have just sought to set out, that is to say, that the rent officer is perfectly entitled, if he has any real doubt about the matter, to say, ‘No, I am not going to decide this matter, and if you want to get it decided you must go to the county court under section 141.’  The rent officer does not say that in terms of course, but that effectively is the result of his not deciding it. *Reported at (1980) 257 EG 605, [1981] 1 EGLR 71. In this case, as far as the rent officer is concerned, I deal first with a preliminary point raised by Mr Laws. On January 7 1980, Mr Madge of the Camden Community Law Centre, on behalf of the applicants, wrote to the rent officer and enclosed an application form completed on behalf of what he described as the tenants, and signed by all of them, all the applicants and, indeed, a Mr Gray who was there at the time, for the registration of the rent, and said: As you will see they have signed two holiday let agreements. Nevertheless we are of the opinion that all six tenants are joint regulated tenants. We have applied on their behalf for legal aid to obtain a declaration under section 141 of the Rent Act to this effect. The rent officer apparently replied by telephone and then, in the letter of March 14 1980, Mr Madge set out his argument much more fully as to why the rent officer should deal with this matter; and on March 25 the rent officer replied directly to Miss Plant and, after having referred to the fact that the law centre were proposing to apply to the county court for a declaration under section 141, the rent officer said: There seems little point in inspecting the premises or holding a consultation until these matters have been resolved. The inspection and consultation dates are therefore cancelled. As soon as I hear that the courts have reached a decision I will arrange other dates. At that time it was thought, and correctly thought, that if the rent were registered at some future time and the rent that was registered proved to be less than the rent that Miss Plant was currently paying, then that decision would be back-dated to the date of the application. That was based upon what was, and indeed at this present moment still is, the law contained in section 72 of the 1977 Act, which effectively provides that in the normal case where an application has been made, the effect of the decision backdates to the date of the application. But that provision is to be altered by section 61 of the Housing Act of 1980. Substantial parts of the Housing Act 1980 are already in force, but parts of it have not yet been brought into force. Section 61 is one of the parts that has not been brought into force, but I am told that by that process of osmosis which seems to be the process by which government now makes known the times at which statutes are to come into force, it is thought that section 72 is going to take effect or be brought into force on, I think it is the 28th of this month, but, the end of this month. That may or may not prove to be the case. Certainly there is an anticipation that it will not be too distant. The effect of the substantial alteration effected by section 61 of the 1980 Act on section 72 of the 1977 Act will most probably be, and certainly Mrs Moorhouse argues that it will be, that when a fair rent is registered, that will take effect only on the date of registration and not be back-dated to the date of the application. Now those provisions of what were then the Housing Bill became known to the Camden Law Centre, who know more about these things than most people in this country (the rent officers apart of course), in June of this year, and they immediately appreciated that if they did not get to the county court for some time and then got a determination in favour of the applicant or applicants, and then got their fair rent registered, there was a very real risk that while it would be registered it would only take effect at the date of the registration. And so there ensued further correspondence in June and July of this year between Mr Madge and the rent officer; effectively Mr Madge doing his best to persuade the rent officer to proceed with the procedure for registering a fair rent and the rent officer saying that he saw no reason to change his mind because legislation was likely to alter the situation. The last letter from the rent officer is one dated July 28 1980, in which he said: I do not feel disposed to reconvene the consultation because your client might be disadvantaged by future legislation. The matter will remain adjourned. And so the applicants then made application for judicial review and that application was initiated by notice given on August 11 1980. The application for leave was heard by McNeill J. Perhaps I should say this before I come to McNeill J’s decision. If the matter had remained there, that is to say, if all that had been in issue as it was at the time when the application for leave was made was the question whether or not the rent officer should be ordered to get on with the procedure under the Rent Act, the question under section 9 not having been determined, and no application being made to this court to determine it — if that had been the position, I would have been inclined to the view, although I am not going to decide it finally, that mandamus would not issue against the rent officer. In other words I take the view that he was entitled to adopt the attitude he did that unless and until the matter had been decided by the county court or, as it turns out, this court, he was not going to proceed, and I do not think it would have been right to say ‘you must proceed’ even though the question which is in issue has not been decided. When the application for leave was made to McNeill J on August 14 1980, he pointed out, as I understand it, that under the procedure of Order 53, which was introduced in 1977 by an amendment of the rules, on an application for judicial review the applicant can now apply not merely for an order of mandamus, prohibition or certiorari or an injunction in the particular circumstances, but can also apply for a declaration. Rule 1(2) of Order 53 sets out the circumstances in which a declaration may be sought. McNeill J referred to the particular circumstances of this case where an application had been made by Miss Plant, or on her behalf, for legal aid to pursue her section 141 application, that that application for legal aid has still not been determined. McNeill J therefore suggested that there should be added to the application for judicial review an application for a declaration in the terms which now appear, that is to say, a declaration that the applicants are protected or statutory tenants. Mr Laws’s preliminary point is that the procedure under Order 53 should not be used to determine private disputes. It should be used only to determine public issues. He drew my attention, in relation to this matter, to the decision of the Court of Appeal in a case called George v Secretary of State for the Environment (1979) 38 P & CR 609, where at p 615 Lord Denning MR said: It seems to me that, in general, cross-examination should not be allowed in prerogative writ proceedings or in proceedings for judicial review or in applications like this for [confirmation of] compulsory purchase orders. There are very good reasons for this rule. First, usually the affidavits speak as to what took place before the determining body. It may have been before a planning inspector, or a magistrate, or someone of that kind. He may have to make an affidavit as to what took place before him. It is undesirable that he should be subjected to cross-examination. We said so in a recent case about a certification officer. And then he went on: Secondly, experience shows that on these procedural questions there is very little conflict on the affidavits. Thirdly, one party or the other might, by way of cross-examination, try to undermine the actual findings of the inspector or other officer holding the inquiry. It should be pointed out that that particular case was not a case of judicial review at all but was an appeal to the court under the75 specific statutory appeal procedure under the Acquisition of Land (Authorisation Procedure) Act 1946. In other words it was one that concerned a compulsory purchase matter and it did not fall within Order 53 at all, and, with the greatest respect to his Lordship, when he was referring, as he did in that passage which I have just read, to ‘prerogative writ proceedings or in proceedings for judicial review or in applications like this’, what he said was strictly obiter, and it is noteworthy that though Roskill and Cumming-Bruce LJJ, who were the other members of the court, agreed with Lord Denning on his conclusion in relation to that particular case, they did not say anything about judicial review. I say only this, that it may be, with the widening of the scope of what was formerly the prerogative orders procedure by the inclusion within Order 53 of applications for declaration, that it is right that it should become somewhat more common for matters to be dealt with by way of not merely affidavit, but cross-examination. But having said that, I do accept that it is only in an exceptional case that what is essentially a private issue should be litigated on a procedure designed to deal with public rights. To that extent I am entirely with Mr Laws. I do not, of course, know why McNeill J took the step he did, but I imagine his thinking went something like this — and certainly having, so to speak, retrospectively tried to think myself into his mind, my thinking might have gone something like this: the law in general is opposed to delay, contrary to an impression which may prevail. The courts should decide issues as speedily as possible. Sometimes it does not greatly matter whether an issue is decided at the beginning of this year or the end of this year or even next year. If the decision is delayed it may mean that one party has to pay some more interest, or it may have its effect on costs, but apart from that it may not greatly matter, but there are many situations in which delay does work to the advantage of one party and the disadvantage of the other, and if that is the situation, then it is a general principle of law that delay is unjust and should not be allowed if it can be avoided. In a totally different field, for instance, the courts relying upon that principle will sometimes strike out an action where they take the view that a plaintiff has unduly delayed in prosecuting it, if, but only if, they come to the conclusion that the other party is prejudiced by that delay. McNeill J, I imagine, took the view, since the section 141 proceedings in the county court had not even been started, that while he was giving leave for judicial review, in relation to the mandamus, since the procedure could be used to determine the question under section 9 of the 1977 Act, that would most probably be the quickest way of getting the matter dealt with, and so it has proved, and thus he may well have thought that justice would be served in the particular circumstances of this case by suggesting the addition of an application for a declaration. If he did think that, I agree with him, but I emphasise that the circumstances of this case are that, for reasons which I do not wholly understand, the application for legal aid for these section 141 proceedings were not dealt with for six months. For that reason, and in the particular circumstances of this case, I think it right to go on and deal with the determination of the question under section 9. But I emphasise that this should not be general practice, and if the rent officer is concerned, as I understand he is, that a decision in this case will, as it were, open the floodgates to applications for declarations, instead of section 141 determinations, it is my firm view that that should not normally be the position. I therefore propose to decide the issue as to whether or not this tenancy came within section 9. I say ‘this tenancy’. I emphasise that I am clearly of the view that what I am concerned with is the tenancy to which the agreement dated October 28 1979, signed by Miss Plant, relates, because whether or not the tenancy is protected, that is the tenancy that is or is not protected. The facts as to the agreement of April 1979 are merely background information, which are important but not part of the actual tenancy agreement itself. As to the facts relating to the entry into the agreement dated October 28 1979, there is in the end no dispute as to what I consider the material facts. There is a dispute about peripheral matters. I do not consider that where there is an area of dispute it relates to anything that is essential to my determination of the question. There are now five applicants because one of the two young men who were formerly in these premises has left. The four ladies are all, and were in April 1979, student nurses, and they all started their training at University College Hospital simultaneously in February 1978. It is a three-year training and, barring accidents, they will all qualify as state registered nurses in February 1981. Thereafter, I was informed, they would normally expect to stay on at the hospital as staff nurses for, at any rate, a period of time. That is as it may be, but it is quite clear that what they were concerned with was accommodation which would, they hoped, be available to them at any rate until 1981. In the spring of 1979 since they started their training, if I understand the evidence correctly, they had all been living in nurses’ hostels and they had together concluded that they would quite like a change of scene, and so they decided that they would all look for a flat. They studied advertisements and they no doubt made some enquiries, and on Friday, April 27, they saw an advertisement in the Evening Standard which undoubtedly was an advertisement of this flat, and the cryptic message conveyed by the advertisement did not say anything about a holiday letting. Mr Simon has put before me in his affidavit and in his oral evidence, and I accept, that the advertisement he sought to place with the Evening Standard, and, indeed, did place with the Evening Standard, which appeared in the editions of that paper earlier that week, did refer to this as being a holiday letting. How it comes about that the advertisement that appeared on the Friday did not, I have no idea. But it does not seem to me to matter whether these young ladies when they first saw the advertisement realised that what was being offered was a holiday letting or not. On the Friday, two of them, Miss Plant and Miss Nelson, went to the premises; they saw the flat; they there met a Miss Halpen who was acting as Mr Simon’s agent. She showed them around and one of them had a telephone conversation from the flat with Mr Simon. Exactly what transpired in that telephone conversation does not matter, but it is clear that they were granted what in law was an option for 24 hours to take the tenancy on payment of £20, which they did pay. It was not a deposit; it was an option to grant them the right to enter into the tenancy agreement and not to enter into such an agreement with anybody else for 24 hours. Mr Simon honoured that option and the next day they, having found two young men who were willing to occupy these premises with them, I think all six of them (certainly most of the six) went to the premises on Saturday 28 and they there met Mr Simon. There is no doubt that he asked each of them to complete a form, of which he had copies, setting out details of their particular circumstances, and each of them did complete such a form and the copies have been produced to me. The form records their names; their present addresses which are shown as, in the case of the girls, the nurses’ homes in which they were then residing; the name and address of their parents or next of kin, and in each case I think I am right in saying it is their parents; the name and address of the employers; the occupation, and this is very important in the circumstances of this case; the bankers; and another reference. Against ‘occupation’ all the girls wrote ‘student nurse’, and the young men wrote that they were students, one of psychology and one a dental student. Mr Simon produced a copy of the tenancy agreement and he allowed them all — indeed, I think he invited them all — to read it, and many of them did read it. There is no suggestion here that it was simply put in front of them and they signed it without knowing what was in it. Certainly those who matter read it, and at the top of it, it says: THE Tenant shall have the right to occupy and use for a holiday the suite of rooms or flat consisting of 5 rooms numbered 72b . . . 72 Fleet Rd, NW3. The evidence is that Miss Nelson, who was the lady who was going to enter into the agreement at that stage, in effect said, ‘What is all this about a holiday letting?’  She says that Mr Simon answered that it was a protection against having bad tenants for himself and for them. Mr Simon’s account of that is somewhat different. He says that he made it clear that it was to be a holiday letting only. He also says that it was only after Miss Nelson had signed, as she undoubtedly did sign, that tenancy agreement that the detailed particulars were entered upon the forms. I find that a little surprising because, after76 all, the purpose of the forms was to enable him to find out as much as he could about the status, financial position and apparent respectability of these future tenants, and you would have thought that he would have wanted to have assured himself about that before he entered into the agreement and not afterwards. But again, it does not matter because it is October I am concerned with, not April, and what is quite clear is that from April 28 onwards on the one hand all the applicants knew that the form of agreement said in terms ‘This is to occupy and use for a holiday’; on the other hand it is quite clear, and Mr Simon so told me in evidence (he did not pretend otherwise — he was quite frank about it), that from then onwards he had in his possession these documents which indicated their occupations. He knew they were student nurses or students of psychology and dentistry and he knew they were working in that capacity and that that is what they were going to be doing when they occupied his flat. So, when we come to October that was the state of knowledge of the parties. They all knew perfectly well that in fact the occupants were going to be working as students. What happened in the autumn seems to be this: that at some time in September the question of renewal of this agreement arose (I should have said that the April agreement was for six months), and Mr Simon indicated at some stage that he was not willing to have Miss Nelson, not that he had anything against Miss Nelson but, because of his desire to ensure that this was so far as possible outside section 9 of the Rent Act, he wanted to have a different tenant, a different signatory to the tenancy agreement. Moreover, he at that stage was not committed in any sense to letting to any of these six people; and indeed, he says, and I find, that he did advertise the flat again. Having so advertised it again, in October there were some negotiations between them as to a reletting and eventually it was agreed that Miss Plant should take a new tenancy at an increased rent. There was a bit of haggling about the increased rent which seems to have gone on to the extent that one or two figures were entered on to the tenancy agreement itself and scratched out and other figures substituted. Be that as it may, in the end it was agreed that Miss Plant should take a tenancy for six months from October 28 at £474 per month. And so, on October 24 Mr Simon went round to the premises and I find that he had with him a copy, or rather two copies, original and counterpart, of the new tenancy agreement all ready filled in with the details, and he had filled it in, as far as Miss Plant was concerned, quite obviously by looking back at the copy of her particulars which was contained in his file (it was obvious he was meticulous about keeping these things) and there he found her occupation. It does not of course appear on the tenancy agreement but there it is; there it was in front of him; and from it he obtained the details about her, and one of the things he inserted was that her address was 4 St Pancras Way. Now that was, and he knew it was, inaccurate, because 4 St Pancras Way was the nurses’ home that she had left in April. Mr Simon knew that, but he was putting this on, making it appear that she was a new tenant coming from outside, whereas in fact, of course, her address was Fleet Road, Hampstead, or her parents’ address, whichever she cared to use. It was one or the other, but it certainly was not 4 St Pancras Way. At any rate, he took this form of agreement round; she signed, he signed; another month’s rent in advance was paid and that was that. I should have said that the way in which the rent was paid was usually that instead of the tenant paying the whole of the £425 a month as it originally was, and £474 as it became, each of them paid their appropriate share and they usually paid by way of cheques backed by bankers’ cards, usually two cheques because the share of each of them was of course over £50 a month. There was a suggestion made that that meant, or could be interpreted as meaning, that each of them had a tenancy. I do not believe that. This was merely a convenient way of Mr Simon’s getting a rent, getting it in a fairly secure way, but I think that the legal position is that Miss Plant was the tenant; Miss Nelson was the tenant from April to October; and all the others were paying their shares as agents for her. It was her responsibility; Miss Nelson’s first and then Miss Plant’s; and will be Miss Plant’s for the future, to pay Mr Simon the rent. He would not be entitled to sue anybody else for it in my judgment. And that is how this agreement was entered into. The law in relation to this matter, in so far as there is any decided authority, is contained in the decision of the Court of Appeal in a case called Buchmann v May [1978] 2 All ER 993. That was a case under the section of the 1974 Act which preceded section 9. The reason why section 9 came into the law in the 1974 Act is that that was when Parliament thought it right to bring furnished lettings within the control of the Rent Acts instead of the different form of control to which they had previously been subjected. Having done so, Parliament also obviously thought it right that certain types of lettings should still be excluded from the Rent Act including lettings for the purpose of a holiday; and that is the genesis of section 9. Buchmann v May was a case in which a county court judge, on an application under the precursor of section 141, had decided the question whether there was a holiday letting or no, but he had apparently decided it purely on the oral evidence without any reference to the written agreement at all, and there was no reference in his judgment to the written tenancy agreement. The gist of the decision is that where there is a written agreement then the first thing the court must do is to look at the written agreement, and if the written agreement says that this is a letting for the purpose of a holiday, then prima facie that is the purpose of the letting. The court is entitled and, indeed, obliged to go on and consider other evidence to see whether that represents the reality of the situation, but it is only if there is clear evidence contradicting the words of the agreement that the court should decide otherwise; and that is to be found in passages to which I have been referred in the judgments of Sir John Pennycuick, who gave the first judgment at p 998, where he said: Where parties to an instrument express their purpose in entering into the transaction effected by it, or the purposes for which, in the case of a tenancy agreement, the demised property is to be used, this expression of purpose is at least prima facie evidence of their true purpose and as such can only be displaced by evidence that the express purpose does not represent the true purpose. And then two sentences later: When I say the express purpose does not represent the true purpose, I mean that the express purpose does not correspond to the true purpose, whether the express purpose is a deliberate sham or merely a false label in the sense of a mistake in expression of intention. Stephenson and Megaw LJJ, who gave much shorter judgments agreeing with Sir John Pennycuick’s, said somewhat the same thing in terms which Mr Goudie has suggested to me really related only to sham, rather than to the alternative of a false label in the sense of a mistake in the expression of the intention. I do not accept Mr Goudie’s submission in that respect. I believe that, when read properly, all their Lordships were saying the same thing in their judgments though, not unnaturally, they expressed it in slightly different ways. That is not merely binding on me, but of course I entirely accept that that is the approach that I must adopt, and it is the approach that I do adopt. Prima facie this agreement of October 28 1979 was to occupy and use this flat for a holiday, but I have clear evidence that both parties knew perfectly well in October that none of the persons who were going to occupy this flat were going to occupy it for the purposes of a holiday. I have clear evidence that all the parties knew they were going to occupy it for the purposes of their work as students. I so find and that seems to me to be conclusive of the matter. One does not need to debate precisely what is meant by the intention of Mr Simon. As I have already said, I am satisfied that Mr Simon’s desire was quite properly so to arrange affairs that lettings of this flat did not fall within the Rent Acts. In the particular circumstances of this case, perhaps because he found these tenants satisfactory, agreeable and respectable tenants, I know not, but for whatever reason, his letting in October 1979 failed to achieve his desire, in my view, and I find that there is clear evidence that the purpose expressed in the tenancy agreement was not the true purpose of that agreement. In arriving at that conclusion I have not found it necessary, to use the words of the present Lord Chief Justice, to bend over backwards. I have managed to remain reasonably upright while achieving that result. I have taken note, in,77 arriving at it, of the other authority to which Mr Goudie drew my attention, Aldrington Garages v Fielder (1978) 37 P & CR 461. It follows that I find that Miss Plant entered into a tenancy agreement on October 28 1979 of which the purpose was not to occupy the dwelling-house for a holiday. It did not fall within section 9. It follows that, in my judgment, it was, and is, a protected tenancy. The question then arises and has been debated, what orders I should make. Mr Laws invited me not to make any order. He said, having expressed the view I have just expressed, the rent officer would follow it and, of course, I am sure he will. I have no doubt about that at all. Mr Laws also submitted to me that it was inappropriate simply to make a declaration, and on the whole I agree with that for the reasons I have already sought to express, though I hope I have made it clear that the facts of this case I regard as being quite exceptional, and I am sure, among others, those who instruct Mrs Moorhouse will recognise that coming to this court is not to be adopted as anything like the normal procedure for dealing with this particular matter. I conclude that it really would be best if instead of leaving the matter in the air I did grant both the remedies sought. I mean no disrespect to the rent officer in doing so. I hope that he does not feel that in any sense I am being offensive to him in making an order for mandamus. It is in my judgment the best way of clearing the matter and I therefore grant the relief sought by Mrs Moorhouse. I grant an order of mandamus to the rent officer to hold a consultation and thereafter to proceed to register a rent and I grant a declaration that the applicant is a protected tenant within the meaning of the Rent Act 1977. The judge made an order for costs in favour of Miss Plant against the landlord, Mr Simon, limited to the costs of a one-day hearing on the county court scale. No order for costs was made against the rent officer. At a subsequent application the judge varied his original order by directing that the rent officer should complete his consultation and registration by the end of the day of November 27 1980.