Land and Environment Court of New South Wales CITATION: DiFrancesco v Lane Cove Council [1999] NSWLEC 257 PARTIES APPLICANT DiFrancesco RESPONDENT Lane Cove Council NUMBER: 10123 of 1999 CORAM: Pearlman J KEY ISSUES: Section 56A Appeal :- deferred commencement consent - misdirection - failure to consider relevant matters - failure to make an assessment or reach required satisfaction Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Lane Cove Local Environmental Plan 1987 State Environmental Planning Policy No 56 State Environmental Planning Policy No 19 DATES OF HEARING: 10/20/1999 DATE OF JUDGMENT DELIVERY: 12/06/1999 APPLICANT Mr P R Callaghan SC with Ms R P Rana (Barrister) SOLICITORS Steven Klinger LEGAL REPRESENTATIVES: RESPONDENT Mr P J Schofield (Solicitor) SOLICITORS Pike Pike & Fenwick JUDGMENT: IN THE LAND AND 10123 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 6 December 1999 CHARLES DIFRANCESCO Applicant v LANE COVE COUNCIL Respondent JUDGMENT Introduction 1. This is an appeal under s 56A of the Land and Environment Court Act 1979 ("the Court Act") brought by Lane Cove Council ("the council") against the decision of Commissioner Brown who granted development consent subject to conditions in respect of a swimming pool at 4a Birriwa Place, Northwood ("the land"). 2. The land is a battle-axe block with a frontage to Lane Cove River at Woodford Bay. That part of the land which fronts Woodford Bay is zoned 9(c) (Regional Open Space Reservation Zone) under the Lane Cove Local Environmental Plan 1987 ("the LEP") and the remainder of the land is zoned 2(a2) (Resident "A2" Zone). The swimming pool was proposed to be constructed upon that part of the land which is within the 9(c) zone. At the time of the hearing before Commissioner Brown a dwelling house was being constructed on the remainder of the land. The grounds of appeal 3. The articulation of the grounds of appeal by the council leaves a lot to be desired. Part 13 r 37 of the Land and Environment Court Rules 1996 provides that an applicant must file and serve "a brief but specific statement" of the grounds relied upon in support of the appeal. 4. The notice of motion which constituted the appeal provided a statement of grounds which was brief but hardly specific. It was as follows: That the Commissioner erred in law in finding that the application was appropriate for approval subject to conditions. Such further or other grounds as the Respondent shall see fit to rely upon when a transcript of the Commissioner's extempore decision is available to it. No amended statement of grounds was filed. 5. As a consequence, the Court has been required to articulate for itself the grounds of appeal simply by reference to the written and oral submissions of Mr Schofield who appeared on behalf of the council. I mention this because it is an unsatisfactory state of affairs and it is a situation which those appearing for appellants should be diligent to avoid. 6. Relying then, on Mr Schofields' written and oral submissions, I have discerned the following grounds of appeal: (1) The Commissioner erred in his purported application of s 91AA of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in order to grant a deferred commencement consent; (2) The Commissioner misdirected himself, that is, he defined otherwise than in accordance with law the question of fact which he had to answer in relation to the following aspects of the case: (a) the consideration of the matters prescribed by cl 7 of State Environmental Planning Policy No 56 ("SEPP 56"); and (b) whether or not the proposed development was consistent with the objectives of zone 9(c), as required by cl 9(3) of the LEP; (3) The Commissioner failed to consider the following relevant matters: (a) the matters required to be taken into account under cl 10(6) of the LEP in relation to the development of land within zone 9(c); and (b) the impact of the proposed development upon the Lane Cove River as required by cl 18G of the LEP; (4) The Commissioner failed to make the assessment or reach the satisfaction required by cl 6(4) of State Environmental Planning Policy No 19 ("SEPP 19"). 7. I deal with each of these grounds in turn, and in doing so, I emphasise that the appeal is confined, as s 56A of the Court Act provides, to questions of law, the task of the Court being only to determine if the Commissioner committed any errors of law. Ground 1 - The application of s 91AA 8. The conditions which were imposed by the Commissioner upon the grant of the development consent commenced as follows: A. Pursuant to s. 91AA of the Environmental Planning and Assessment Act 1979 a deferred commencement consent is granted subject to:- 1. The submission, and approval by the Council of a landscaping plan which reflects the architectural plan for the swimming pool. The plan is also to address the stormwater disposal design for the proposed dwelling on the site, the construction of the sandstone wall surrounding the pool and the relationship with the existing trees between the wall and the waterfront. The plan is also to provide for the retention of the existing Campher laurell (sic) at least until additional species can provide a reasonable degree of screening for the swimming pool and a weed maintenance program. B. Upon the completion of the matter cited in Part A development consent be granted subject to the following conditions … 9. At the outset, I should note that the Commissioner erred in his reference to s 91AA of the EP& A Act. That section was repealed by the amendments to the EP&A Act which came into force on 1 July 1998, and it was replaced by s 80(3). The development application the subject of the Commissioner's decision was made in October 1998 and fell to be determined under the amended EP&A Act, but, since s 80(3) is in terms almost identical to s 91AA, this error could not be regarded as vitiating the Commissioner's decision. (For convenience, however, I will hereafter refer to the relevant section as s 91AA.) 10. Section 91AA relevantly provided as follows: (1) A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. 11. The reason why the Commissioner took the step of imposing a deferred commencement condition appears from the facts set out in his judgment. Ms J Ramsay, a landscape architect, had furnished a landscape plan on behalf of the applicant, but, as appeared from the evidence of Ms S Butler, the council's bushland manager, there was a conflict between the architectural plans for the swimming pool and the landscape plan, and between the stormwater disposal plans for the adjoining dwelling and the landscape plan. 12. At p 7 of his judgment, the Commissioner stated that he was not prepared to accept the landscape plan because of this conflict, and he went on to state: To overcome this conflict, I intend to issue a s 91AA Deferred Commencement approval requiring a new landscaping plan that takes into account the proper location of the pool, the amount of coping, the storm water disposal details for the house, the impact of the batter of the sandstone wall and the relationship with the existing trees. This plan should also reflect the retention of the existing Camphor Laurel tree, at least until any supplementary trees achieve a reasonable level. 13. Against this background, the council's case is that there was an unresolved issue about the impact of the proposed development, that the determination of that unresolved issue could lead to unidentified changes to the concept of the proposed development, and that consequence could not be overcome by the application of s 91AA. 14. For this proposition, Mr Schofield relied upon Remath Investments No 6 Pty Ltd v Botany Bay City Council (No 2) (11 December 1996, unreported) in which at p 9, in relation to the application of s 91AA, Talbot J said: In the Court's opinion, s 91AA is not to be regarded as a panacea to overcome any unresolved issue at the time a development consent is granted. … The section is not designed to overcome unresolved issues, the determination of which could lead to unidentified changes to the concept of the development which may in turn give rise to impacts that require consideration under s 90 of the EPA Act. … It is surely self evident that s 91AA was not intended to allow the consent authority to leave unresolved issues, known and unknown, in respect of the impact of the development and thus for future determination in the light of the ultimate design. 15. In Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294, Bignold J at p 310 expressed the view that the range of matters that may be specified in a deferred commencement condition is "… obviously and deliberately wide …" and he expressed doubt at p 309 as to the more narrow approach adopted by Talbot J in Remath v Botany Council . However, Talbot J adhered to his approach in the later decision of Designlink International v Baulkham Hills Shire Council (15 September 1999, unreported) stating, at p 4, that s 91AA must be applied "… within constraints which require the grant of development consent to be final". 16. However, it is unnecessary for me to choose between either of these approaches, because I have concluded that, on any test, the matter which was the subject of the deferred commencement condition (condition A) was appropriately deferred pursuant to s 91AA. In my opinion, condition A did not defer for later decision the grant of development consent, nor did it leave unresolved an issue which could lead to unidentified changes in the concept of the proposed development, nor was the development consent which the Commissioner granted anything but a final consent. There are a number of reasons why I have reached this conclusion. 17. First, condition A does not defer the grant of development consent, although the language used is imprecise and does not precisely accord with the operation of s 91AA. In the opening words of condition A, deferred commencement consent is expressed to be "granted" , and the submission to and approval by the council of a landscaping plan which conforms to condition A does not require some subsequent grant of development consent. It is true that the opening words of condition B purport to "grant" development consent upon completion of the deferred matter in condition A rather than, as s 91AA require, deferring the operation of the development consent until condition A is satisfied. However, read broadly and without a fine toothcomb approach (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367) and read in the context of the opening words of condition A and what condition A actually requires, the opening words of condition B do not in my opinion defer the grant of development consent. 18. Secondly, landscaping was not a fundamental aspect of the proposed development, but rather was ancillary to it (cf Scott and Ors v Wollongong City Council and Anor (1992) 75 LGRA 112 cited by Talbot J in Designlink International v Baulkham Hills Shire Council at p 4). The purpose for which development consent was sought was to construct a swimming pool, and landscaping was not intended to alter the swimming pool construction in any fundamental way. 19. Thirdly, it is important to bear in mind that, although the landscaping plan may have been required to serve several purposes, its major purpose was to delineate landscaping for the purpose of visual impact. Thus, the Commissioner noted on p 6 of the judgment that the additional landscaping which the applicant proposed was "critically linked" to the issue of visual impact of the proposed development when viewed from the water. 20. However, his assessment that there would be no visual impact did not depend solely upon what was proposed in the landscaping plan. It depended upon other factors (which the Commissioner set out at p 6 and p 7) namely, that the swimming pool would be "barely noticeable" from the site, that it would be "almost totally indistinguishable" from greater distances, and that the existing vegetation would provide an "adequate screen" at present. The Commissioner found, at p 7, that "… with the additional landscaping proposed as part of the landscaping plan, the pool will be further screened" . He went on to state, at p 7, the following: While accepting the additional landscaping can be accommodated on the site, to provide further screening, I am not prepared to accept the plan provided by Ms Ramsay when there is conflict between this plan, the storm water disposal plan for the dwelling and the architectural plans for the pool. 21. For these reasons, I have concluded that this ground of appeal must fail. Ground 2 - Did the Commissioner misdirect himself? 22. On p 7 of his judgment, the Commissioner made the following statement: In terms of the relevant planning controls I see no conflict with the relevant Guiding Principles of SEPP 56 and the aims and objectives of LEP 1987 including clauses 2(1), 2(2)(c), 2(2)(d) and 2(2)(f). 23. Turning first to SEPP 56, the reference in the judgment was to State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries ("SEPP 56"). It applied to the site, and it included, in cl 7, a set of "guiding principles", being matters which are required to be taken into account in relation to all decisions made in the administration of the EP&A Act relating to the planning and development of land to which SEPP 56 applies. 24. In his judgment at p 2, the Commissioner acknowledged that SEPP 56 applied to the site, and referred to the "guiding principles" as matters to be considered with respect to any development around the foreshores of the harbour. He did not, however, make any other reference to SEPP 56 except in the passage on p 7 which I have quoted above. 25. The council's case is that the Commissioner misdirected himself as to the question which he had to determine pursuant to SEPP 56. He was not required to consider whether the proposed development was "in conflict" with the guiding principles of SEPP 56; rather he was required to take into consideration the matters which were set out in the guiding principles. 26. It is important to remember that the judgment is that of a layman, not a lawyer, and a fine toothcomb approach should not be taken ( Brimbella v Mosman Council at 368). The Commissioner's use of the word "conflict" should not be taken too literally. Bearing that in mind in relation to SEPP 56, it could not be said that the Commissioner's use of the word "conflict" belies a conclusion that he took the relevant matters in the guiding principles into consideration. Of course, taking matters into consideration has a consequence. That consideration might mean, in terms of SEPP 56, that the decision should be to refuse development consent or, alternatively, that the decision should be not to refuse that consent. The Commissioner's reference to "no conflict" must be understood as saying no more than, having considered the guiding principles, development consent should not be refused. That does not amount, in my opinion, to the Commissioner defining otherwise than in accordance with law the question which he was required to answer. 27. I turn now to the objective of the 9(c) zone. The council's case is that the Commissioner misdirected himself in relation to the issue of whether or not the proposed development was consistent with that objective. 28. Clause 9(3) of the LEP is in conventional terms, as follows: (3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 29. Mr Schofield drew attention to the passage I have earlier quoted from p 7 of the Commissioner's judgment, where the Commissioner stated that he saw "no conflict" with the guiding principles of SEPP 56 and "the aims and objectives of LEP 1987 including clauses 2(1), 2(2)(c), 2(2)(d) and 2(2)(f)". In Mr Schofield's submission, the question posed by cl 9(3) is "consistency", not "conflict", and accordingly, having regard to this passage from the Commissioner's judgment, Mr Schofield submitted that the Commissioner asked himself the wrong question. 30. I am, however, at a loss to know why this ground of appeal was raised at all. The passage from the judgment on which Mr Schofield relied had nothing whatsoever to do with cl 9(3). The Commissioner was clearly referring to the objectives of the LEP itself, and, in particular, those aims specified in the parts of cl 2 of the LEP to which the Commissioner referred. 31. More fundamentally, however, cl 9(3) had no role to play in the determination of the development application the subject of this case, even though the council had raised consistency with the zone objective as an issue. The reason it had no role to play is as follows. Under the 9(c) zone, development for the purpose of a swimming pool was prohibited, because item 4 of the zoning table prohibits any purpose other than a matter included in item 3, and a swimming pool does not appear in item 3. However, as cl 9(2) of the LEP conventionally provides, the zoning table operates "except as otherwise provided by this plan" . There is such an exception. Clause 10(4) of the LEP, which applies to land zoned 9(c) (as well as land in other zones), provides as follows: 10(4) Land which is within … [zone 9(c)] … may be developed for any purpose, with the consent of the Council, until the land is acquired by the public authority concerned. 32. Clause 9(3) operates as a prohibition, that is, if a proposed development is inconsistent with the objectives of the relevant zone, then development consent cannot be granted. But cl 9(3) also operates "except as otherwise provided by this plan" , and cl 10(4) of the LEP is such an exception. Development for any purpose was permissible with consent upon the land. The effect of cl 10(4) is therefore to oust the operation of cl 9(3) in relation to land zoned 9(c). 33. In his opening statement at the hearing before the Commissioner, Mr Griffiths, who appeared for the council, recognised that cl 10(4) was the operative clause and drew the Commissioner's attention to its provisions, but otherwise, as a perusal of the transcript of that hearing shows, no further reference was made to the zone objective. For the reasons that I have outlined, that was understandable, and the Commissioner committed no error of law in failing to refer to the zone objective. 34. For these reasons, I have concluded that the second ground of appeal must fail. Ground 3 - Failure to consider relevant matters 35. There are two matters which arise in connection with this ground of appeal. The first relates to cl 10(6) of the LEP, and the second relates to cl 18G of the same instrument. 36. Clause 10 of the LEP is a provision which, amongst other things, entitles an owner of land which is zoned 9(c) to require the Minister administering the EP&A Act to acquire that land. As I have earlier pointed out, cl 10(4) provides that any land within zone 9(c) may be developed for any purpose with consent, until it is acquired by the relevant public authority. Clause 10 goes on to provide: (5) The Council shall not grant consent as referred to in subclause (4) to the development of land to be acquired by a public authority other than itself unless it obtains the concurrence of the public authority which is to acquire the land. (6) In consider whether to grant concurrence under subclause (5), the public authority which is to acquire the land shall take into consideration - (a) the effect of the proposed development on the costs of acquisition. (b) the imminence of the acquisition; and (c) the costs associated with the reinstatement of the land for the purposes, if any, specified in relation to the zone relating to the land in items 2 and 3 of the Table to clause 9. 37. The Minister, through the Department of Urban Affairs and Planning ("DUAP"), had announced that he would not grant concurrence to the grant of development consent in respect of the site. That was not necessarily an impediment to the grant of development consent, because s 39(6) of the Court Act provides that the Court on appeal may grant development consent whether or not concurrence has been granted. 38. In his judgment, the Commissioner set out the matters to be taken into account under cl 10(6) and he also noted that DUAP had not given concurrence. He then quoted from the written report of Ms P Samios, an officer of DUAP, as to the position which DUAP had taken in relation to concurrence. Ms Samios position noted that DUAP might agree to certain forms of development "… as long as the reinstatement costs are minimal, the integrity of the reservation has not been destroyed and the owners entered into a Deed of Agreement indemnifying the Department in relation to claims for compensation" . In her written statement of evidence, Ms Samios went on to say that "under clause 10(6)(c) … the development is not justified because of the considerable reinstatement costs which would be involved" . 39. The Commissioner noted that, in response to this position, the applicant had offered to enter into a deed indemnifying DUAP in relation to claims for compensation "… against the effect of the proposed development on the costs of acquisition and upon acquisition, requiring the land owners to remove the pool and reinstate the land to the satisfaction of the Council". 40. After noting that acquisition was not imminent nor had it been sought, the Commissioner made the following finding: On this basis, and accepting the comments from Ms Samios, it would appear that there is no bar to granting concurrence based on clause 10(6). 41. As the Commissioner noted on p 8 of his judgment, he accepted the evidence of Ms Samios as indicating that the land could be used subject to certain conditions, and he noted that he intended to impose a condition which was "comprehensive" and binding on successors in title. A condition of this kind was ultimately imposed. 42. The council submitted that the Commissioner failed properly to take into account the matter specified in cl 10(6)(c), that is, the costs associated with the reinstatement of the land. That is because, in Mr Schofield's submission, it was not simply a matter of requiring an indemnity against those costs; it was also a matter of the amount of those costs, because costs of any degree of magnitude would act as a disincentive to any person to require acquisition of the land. Mr Schofield pointed out that Ms Samios had stated that considerable reinstatement costs were one of the reasons for not giving concurrence, and Mr Griffiths, who, as I have said, appeared for the council on the hearing before the Commissioner, argued strongly that a deed of indemnity might solve the problem of liability for reinstatement costs but it would not solve the problem of lack of incentive if the reinstatement costs were to be substantial. 43. I can discern no error of law on the part of the Commissioner in relation to cl 10(6). He certainly considered the matters set out in that clause, and it is clear that, not only did he take into account Ms Samios' evidence about the issue, he himself sought submissions from the parties' representatives on the question of reinstatement costs. There can be no doubt that the Commissioner took into account the matters specified in cl 10(6). 44. The real gist of the council's contention in relation to cl 10(6) is that the Commissioner "got it wrong". The assertion is that he misunderstood Ms Samios' evidence, and he did not accept Mr Griffiths' submission. But the appeal is confined to errors of law, not errors of fact, and an assertion that a finding is against the evidence is an assertion of an error of fact, which is not a valid ground of appeal under s 56A of the Court Act ( Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156). 45. I turn now to cl 18G of the LEP, which deals with conservation of riverscape qualities. It relevantly provides as follows: The Council, when considering any application for consent to the erection of a structure or the carrying out of a work which will be visible from the site of an item described in Schedule 6, being a site shown on Map H/S 1 or Map H/S 3 (Heritage Items of Landscape Significance) must take into account the impact which that development will have on the heritage significance of the Lane Cover River or that landscape feature. 46. On p 3 of his judgment, the Commissioner noted the terms of cl 18G and noted also that the foreshore of Woodford Bay is included in schedule 6. 47. The Commissioner did not expressly refer to cl 18G in any other part of his judgment, but, on p 6 and p 7, he made the finding about visual impact to which I have already referred, namely, that the impact from the swimming pool would be barely noticeable from near the land, and almost totally indistinguishable from greater distances. Such a finding was repeated by the Commissioner on p 8. 48. The council contended that the Commissioner failed to make any finding in specific relation to cl 18G, and the finding about visual impact was not a finding about the impact on the heritage significance of the Lane Cove River. Mr Schofield submitted that the appropriate test was for the Commissioner to give "proper, genuine and realistic consideration" to the issue (citing North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 at 28) and that the Commissioner failed to do so. 49. However, cl 18G is obviously a clause about visual impact of a development upon the heritage significance of the particular heritage item. In this context, a finding that there would be no visual impact upon Woodford Bay from the development of the swimming pool is directly within the matters contemplated by cl 18G. The fact that the Commissioner did not specifically mention cl 18G in relation to that finding does not mean that he ignored that clause. He had acknowledged the relevance of cl 18G in the opening part of his judgment, and he made a specific finding about visual impact in relation to Woodford Bay which, in my opinion, was precisely what was required by cl 18G. 50. I conclude that the Commissioner did not fail to consider the matters which arose under cl 10(6) and 18G of the LEP, and this ground of appeal must fail. Ground 4 - SEPP 19 51. The Commissioner noted on p 2 of his judgment that the provisions of State Environmental Planning Policy No 19 - Bushland in Urban Areas ("SEPP 19") applied to the land. 52. Clause 6(1) of SEPP 19 provides that "a person shall not disturb bushland zoned or reserved for public open space purposes without the consent of the council" . Clause 6(4) provides as follows: 6(4) A consent authority shall not consent to the carrying out of development referred to in subclause (1) unless - (a) it has made an assessment of the need to protect and preserve the bushland having regard to the aims of this Policy; (b) it is satisfied that the disturbance of the bushland is essential for a purpose in the public interest and no reasonable alternative is available to the disturbance of that bushland; and (c) it is satisfied that the amount of bushland proposed to be disturbed is as little as possible and, where bushland is disturbed to allow construction work to be carried out, the bushland will be reinstated upon completion of that work as far as is possible. 53. The Commissioner dealt with SEPP 19 on p 8 of his judgment in the following terms: For the reasons mentioned earlier, I also see no conflict with the relevant aims and objectives of SEPP 19. Based on the current lack of bushland and the location of the pool, the embellishment of the remaining reservation area and the ultimate reinstatement of the area, the development is satisfactory pursuant to clause 6(4) of SEPP 19. 54. The council's case is that the Commissioner was unable to form any proper opinion under cl 6(4), because he had rejected the landscape plan. In the council's submission, that rejection meant that the Commissioner was not in a position to be satisfied, in terms of cl 6(4), that disturbance of the bushland was essential for a purpose in the public interest, or that the bushland would be reinstated upon completion of the construction work. 55. Mr Callaghan submitted that the assessment and satisfaction required by cl 6(4) were questions of fact and no question of law is raised by them. He pointed out that the Commissioner had made a factual finding at p 5 of his judgment that there were no trees in the area in which the swimming pool was to be sited, and he repeated that finding in his reference on p 8 to "the current lack of bushland" . Mr Callaghan submitted that it may have been the case, therefore, that cl 6(1) of SEPP 19 did not apply as no bushland was to be disturbed, and hence the assessment and satisfaction under cl 6(4) were not required. 56. This assertion seems to me to be correct, in the light of the Commissioner's findings. But, in any event, the Commissioner did consider cl 6(4) as his judgment shows, and, as Mr Callaghan said, the landscape plan was not the only item of evidence relating to bushland on the land. The Commissioner dealt at p 5 and p 6 of his judgment with the impact of the proposed development on bushland, and noted the evidence in that regard from Mrs DiFrancesco, Ms Butler, Ms Ramsay, Mr Stuart, Mr Rolfe and Mr Le Bas. There was evidence upon which he could make the required assessment and derive the required satisfaction. 57. I conclude that this ground of appeal must fail. Conclusion 58. For the reasons I have set out, the council has failed to make out any of its grounds of appeal. 59. I emphasise again, in this connection, that the Court on an appeal under s 56A of the Court Act is not concerned with the merits of the proposed development, but is constrained only to determine if the Commissioner erred in law. There were, no doubt, serious merit issues because the proposed development was a swimming pool to be constructed on open space reservation land adjacent to Woodford Bay. But unless it can be shown that the Commissioner erred in law, his determination of the merit issues must stand. 60. Accordingly, my formal orders are as follows: (1) The appeal is dismissed. (2) The respondent council must pay the costs of the applicant as agreed or as assessed. 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