Manderson v Wright
[2016] VSC 677
•11 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2016 00839
| WARWICK ALEXANDER MANDERSON | Plaintiff |
| v | |
| VICKI LOUISE WRIGHT | Defendant |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2016 |
DATE OF JUDGMENT: | 11 November 2016 |
CASE MAY BE CITED AS: | Manderson v Wright |
MEDIUM NEUTRAL CITATION: | [2016] VSC 677 |
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COMMON LAW – VALUATION, COMPENSATION & PLANNING – Determination of separate questions – Subdivision planning permit requiring the registration of restrictions on the new titles – Expiry of conditions in subdivision planning permit upon the issue of new titles – Creation of building envelopes in neighbourhood design plan – Whether any implied prohibition on removal of native vegetation by reason of the imposition of building envelopes – ‘Reading in’ principles – Meaning of ‘building’ and ‘appurtenance’ - Transfer of Land Act 1958 (Vic) ss 42 & 88 – Subdivision Act 1988 (Vic) s 3 - Planning and Environment Act 1987 (Vic) ss 60(2) & 173.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Robertson | Raven & Associates Lawyers |
| For the Defendant | Ms L Hicks | Lukaitis Lawyers |
HER HONOUR:
Introduction
The plaintiff and the defendant are neighbours. They own holiday houses on adjacent blocks of land – lot 5 and lot 6 – in Warrenbeen Court, Barwon Heads. They are in dispute because the defendant has removed native Moonah trees and other indigenous vegetation from her land and built a large extension to her house, which the plaintiff contends has involved significant breaches of planning controls.
Lots 5 and 6 formed part of a subdivision (‘Warrenbeen Court subdivision’). A restriction is recorded on each of the titles in the Warrenbeen Court subdivision preventing the owners from developing the lots other than in accordance with a neighbourhood design plan approved by the City of Greater Geelong (‘Council’).
There have been a number of neighbourhood design plans. Each of them consists of a drawing showing lots 5 to 11 with hatched and non-hatched areas. Accompanying text states that no building or part of a building shall be located in a hatched area.
In August 2015, the defendant removed native trees from her land for the purpose of carrying out landscaping and building works, and commenced the construction of an extension to her house comprising two large pavilions that appear to extend well outside the designated building envelope for Lot 6 on any of the neighbourhood design plans approved by the Council.
The plaintiff commenced proceedings on 4 March 2016 seeking an injunction requiring the defendant to remove buildings and development on her land outside the designated building envelope for lot 6 and requiring her to reinstate the land with native Moonah trees and indigenous vegetation. The plaintiff also seeks damages or, alternatively, equitable compensation.
The evolution of the relevant planning controls for the lots forming part of the Warrenbeen Court subdivision is broadly as follows:
(a) On 13 November 1997, an application for a 14-lot subdivision was made to the Council.
(b) On 19 January 1998, the Council issued a planning permit No 1057/97 for a 14-lot subdivision (‘subdivision planning permit’).[1] The subdivision planning permit contained the following conditions:
[1]On 10 August 1999, the subdivision planning permit was amended, but nothing relevant flows from the amendment.
16.A neighbourhood design plan including building envelopes to protect and minimise clearance of existing vegetation on the lots shall be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit. Development on these lots shall be in accordance with the neighbourhood design plan.
17.The plan of subdivision shall include a restriction sheet to limit any building or development on lots to accord with the approved neighbourhood design plan and building envelopes.
18.All existing vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
(c) In August 1999, on instructions from the Council, Mark Trengrove prepared an indigenous vegetation survey for the ‘Warrenbeen Woodlands, Sheepwash Road’, recording native vegetation on lots 1-4 and 5-11 in the Warrenbeen Court subdivision. The Trengrove report recorded that the site was dominated by Moonah woodland, that coastal Moonah Woodlands were a protected community under the Flora and Fauna Guarantee Act 1988 (Vic) and that it was ‘designed to locate the areas of highest botanical significance’ so that the locations for housing envelopes could be determined.
(d) On 13 April 2000, the Council certified plan of subdivision PS412071E (‘plan of subdivision’) with restrictions burdening and benefitting lots 1-14. The restrictions are described on the plan of subdivision as follows:
1.The owners of lots 1-14 (all inclusive) shall not allow the erection of more than one dwelling on any single lot or further subdivision of any lot.
2.The owners of lots 1-14 (all inclusive) shall not develop the land other than in accordance with an approved neighbourhood design plan pursuant to planning permit No.1057/97 [the subdivision planning permit].
The meaning and effect of the second restriction (‘restriction No 2’) is in issue in this proceeding.
(e) On 13 April 2000, the Council approved a neighbourhood design plan for stage 2 of the Warrenbeen Court subdivision, which includes lots 5 and 6.
The neighbourhood design plan comprised a drawing of lots 5 to 11 showing hatched and non-hatched areas for each lot and stated that ‘no building or part of the building shall be located in the hatched area’. The notes to the plan also recorded that the plan was not to scale and that it was to be read ‘in conjunction with PS412071E (Stg 2)’.
(f) On 19 July 2000, another neighbourhood design plan was approved by the Council which made minor changes to the building envelopes for some of the lots.
(g) On 27 September 2000, lot 6 was created by instrument PS412071E Stage 2. On the title to lot 6 is recorded ‘Covenant PS41207E 20/09/1999’. This refers to the restrictions on the plan of subdivision, including restriction No 2.
(h) The Council approved or purported to approve further neighbourhood design plans on 5 December 2000, 1 February 2001, and 11 September 2002.
Each of the subsequent neighbourhood design plans was in similar form to the original. On each occasion, relatively minor changes were made to the dimensions of the building envelopes for one or more of the lots.
(i) In March 2005 and November 2006 respectively, the plaintiff and the defendant acquired titles with a recording of the restrictions on the plan of subdivision.
Separate questions
On 22 June 2016, the Court ordered that the following questions be separately tried:
(a) Is planning permit 1057/97 [the subdivision planning permit] still in force or is it spent as a result of the certification of the plan of subdivision PS412071E [the plan of subdivision], the issue of the statement of compliance and the registration of the plan of subdivision?
(b) If the subdivision planning permit is spent as regards to any or all of conditions 16, 17 and 18, does restriction No 2 on the plan of subdivision have any legal effect?
(c) Is the permitted building in respect of lot 6 limited to the non-hatched area for lot 6 as shown in the neighbourhood design plan pursuant to restrictive covenant PS412071E?
(d) Does the restrictive covenant and the neighbourhood design plan require lot owners ‘to protect and minimise clearance of existing vegetation on the lots’ within the hatched areas or is it restricted to defining where a building may be constructed?
(e) Are the neighbourhood design plans approved by the Council which post-date the registration of the plan of subdivision ‘approved’ in respect of Restriction No 2?
(f) Does a ‘building or part of a building’ include decking?
(g) Does clause 52.48 of the City of Greater Geelong Planning Scheme override any requirement ‘to protect and minimise clearance of existence vegetation on the lots’ within the hatched areas on the neighbourhood design plan or covenant?
(h) Does clause 52.48 of the City of Greater Geelong Planning Scheme permit the removal of existing vegetation on lots within the hatched areas of the neighbourhood design plan for the purposes of building and development works?
In effect, these questions raise the following issues:
(a) Have conditions 16, 17 and 18 in the subdivision planning permit survived the certification and registration of the plan of subdivision and the creation of new titles so as to:
(i) limit building and development on the lots?
(ii) prohibit the removal of native vegetation on the lots?
(iii) permit the endorsement or approval of successive or replacement neighbourhood design plans limiting building and development and/or prohibiting the removal of native vegetation on the lots?
(b) If the subdivision planning permit is spent, is restriction No 2 enforceable and does it prohibit the removal of native vegetation on the lots?
(c) What is the status of the decking in the design for the development on lot 6 and is it constrained by the building envelope?
(d) Assuming that restriction No 2 prevents the removal of vegetation on the lots, does cl 52.48 in the Planning Scheme have the effect of allowing the removal of vegetation?
In fact, the answer to the last of these questions was uncontroversial. Clause 52.48 of the Planning Scheme is a bushfire safety provision that affects restrictions on the clearance of vegetation in the planning scheme itself. It was accepted by the parties that it has no effect on the operation of restriction No 2, and would not have any effect even if restriction No 2 prohibited the removal of vegetation.
Preliminary legal issue
Before answering the separate questions, it is convenient to consider the status of restriction No 2 and how it may be removed or varied.
Pursuant to s 3 of the Subdivision Act 1988 (Vic), ‘restriction’ means a restrictive covenant or a restriction that can be registered, or recorded in the Register under the Transfer of Land Act 1958 (Vic). The restrictions in the plan of subdivision, including restriction No 2, are recorded on the titles to the land in the Warrenbeen subdivision. They therefore operate as registered restrictive covenants.
Section 88 of the Transfer of Land Act provides that a recording on a folio of a restrictive covenant that was created by a plan of subdivision must not be deleted or amended by the Registrar unless the restrictive covenant is released or varied by:
(a) a plan of subdivision or consolidation; or
(b) a planning scheme or permit under the Planning and Environment Act 1987 (Vic); or
(c) an order of a court.
The Planning and Environment Act sets out the procedure for the removal or variation of a restrictive covenant by way of the grant of a planning permit. A permit allowing the removal or variation of a restriction can only be granted if the owner of any land benefited by the restriction has consented or the Council is satisfied that he or she will be unlikely to suffer financial loss, loss of amenity, loss arising from change to the character of the neighbourhood or any other material detriment as a consequence of the removal or variation of the restriction.[2]
[2]Planning and Environment Act 1987 (Vic), s 60(2).
Once a restrictive covenant has been recorded on title, there are therefore specific legal mechanisms that need to be used to vary the terms of the covenant.
The substance of restriction No 2 is in the approved neighbourhood design plan for which it provides. The defendant submits that once the subdivision planning permit was spent, no neighbourhood design plans could be approved, as contemplated by restriction No 2. However, she says that she does not ask the Court to find which one of the neighbourhood design plans is the applicable plan.
Which is the applicable neighbourhood design plan is determined by the fact that restriction No 2 operates as a registered restrictive covenant on the titles to the land in the subdivision. In my view, the question is not so much whether the neighbourhood design plans were properly approved ‘pursuant’ to the subdivision planning permit. Rather, the question is whether any purported replacement of one neighbourhood design plan with another took place in accordance with the statutory regime governing the revocation or variation of restrictive covenants.
There was no evidence before me of any application for a grant of a planning permit varying the restrictions recorded on the relevant titles or of any steps taken by the Council to obtain the consent of landowners or reaching the state of satisfaction required by s 60(2) of the Planning and Environment Act. Accordingly, the operative plan is the neighbourhood design plan that was in place at the time the restrictions were recorded on the titles.
Is the subdivision planning permit still in force?
The subdivision planning permit is expressed to allow a 14-lot subdivision and the removal of a carriageway. It contains, like all subdivision permits, a number of conditions, most of them of a mechanical or procedural nature. They include requirements to provide drainage, public open space, street lighting, footpaths, vehicle access barriers and the like. On the subject matter of trees, there are conditions requiring the subdivider to contribute to the costs of planting street trees in accordance with suitable Council policy, and to prepare a landscaping plan for the Council reserve.
The conditions in the subdivision planning permit upon which it is necessary to focus in this case are those providing for:
(a)the preparation and approval of a neighbourhood design plan (condition 16);
(b)the inclusion in the plan of subdivision of a restriction sheet to limit building and development to accord with the approved neighbourhood design plan and building envelopes (condition 17); and
(c)a prohibition on removing, destroying or lopping vegetation without the written consent of the Council (condition 18).
The plaintiff submits that conditions 16, 17 and 18 impose continuing obligations upon landowners and that they remain enforceable against the owners of the lots. The plaintiff contends that the subdivision planning permit prohibits the current land-owners in Warrenbeen Court from removing, lopping or destroying vegetation on the lots.
For her part, the defendant submits that the subdivision planning permit generally, and conditions 16, 17 and 18 specifically, no longer have any force or effect.
In Hillpalm Pty Ltd v Heavens Door Pty Ltd,[3] the High Court of Australia held that a condition imposed in a permit for the subdivision of land could not be enforced against a new owner of a lot created by the subdivision. If council consent for a subdivision operated to create a continuing obligation or a right in rem, and that right affected a later transferee of a lot in the subdivision, there would be a fundamental question about how the creation of such an obligation or right would be consistent with the effective operation of a system of Torrens title.[4]
[3](2004) 220 CLR 472 (“Hillpalm’).
[4]Ibid 490 [51].
In Cope v Hobsons Bay City Council,[5] Morris J, as President of the Victorian Civil and Administrative Tribunal, had to consider whether a planning permit was spent following the completion of the development authorised by the permit. His Honour observed that a planning permit that authorises the development of land may or may not have continuing relevance after the development has been carried out. The answer depends on both the nature of the development and the form of the permit (including the conditions in the permit). His Honour said:[6]
In the case of a permit (or, for that matter, a planning scheme provision) allowing the subdivision of land, it has generally been accepted in Victoria that once the subdivision has been effected and new titles have issued, the permit (or planning scheme provision) is no longer relevant; and any condition which purports to have an independent operation after this time is invalid.
Thus, a responsible authority has not been able to enforce a condition imposed upon a subdivision by a planning scheme provision requiring acoustic protection to new dwellings once the subdivision had been carried out: see City of Whittlesea v Jala Pty Ltd.[7] Similarly, a condition imposed upon a subdivision permit requiring the provision of building envelopes has been conceded to be of no independent force or effect after the subdivision has been carried out: Kruska v Whittlesea City Council.[8]
[5](2004) 140 LGERA 391.
[6]Ibid 400 [44].
[7][2000] VCAT 242.
[8](2002) 11 VPR 66.
The President observed that the decision in Hillpalm was consistent with the principle that once the subdivision has been effected and new titles have been issued, the planning permit for the subdivision is no longer relevant. He expressed the ‘tentative view’ that if an obligation imposed upon a subdivider had not found its way into or become attached to the title of a lot, it could not bind the new owner of the lot, for this would be inconsistent with s 42 of the Transfer of Land Act 1958 (Vic).
I agree that, as a general rule, a planning permit for a subdivision will be spent once the plan of subdivision has been registered and new titles have issued. Any conditions in the permit that are intended to be carried over to bind the owners of the new lots can be attached to the new lots by the registration of a restrictive covenant on the new titles or by a registered agreement made under s 173 of the Planning and Environment Act 1987 (Vic).
Conditions 16 and 17 in the subdivision planning permit anticipate the preparation and endorsement of a neighbourhood design plan and the recording of a restrictive covenant on the new titles. Condition 17 requires the inclusion of a restriction sheet in the plan of subdivision to limit development to accord with the approved neighbourhood design plan. The new titles were to be burdened by, and were to benefit from, a restrictive covenant requiring development on the new lots to be in accordance with the approved neighbourhood design plan.
New titles in the Warrenbeen Court subdivision were duly issued with this restriction on title.
In my view, conditions 16 and 17 of the subdivision planning permit have been implemented and are spent. The plain meaning of conditions 16 and 17 is that there would be restrictions on the development of the land as described in an endorsed or approved neighbourhood design plan and that such restrictions would be recorded on the titles to the new lots. Having regard to the mechanism chosen to control the development of the land, namely, restrictions recorded on the new titles, only one neighbourhood design plan was contemplated and amendments to the restrictions embodied in the neighbourhood design plan were to be effected by the legal means available for the amendment or variation of restrictions on title.
It remains to consider condition 18, which requires the written consent of the Council for the removal, destruction or lopping of existing vegetation. I have concluded that condition 18, along with the subdivision planning permit generally, is spent. In my view, condition 18 was directed to the subdivision works and was not intended to survive the registration of the plan of subdivision and the creation of new titles so as to outlive all the other conditions in the subdivision planning permit and create rights in rem binding future owners of the land.
There are a number of reasons for this conclusion.
The first is that it would be unusual to create rights in rem by way of a condition in a permit to subdivide land. This would, as the High Court observed in Hillpalm, give rise to a fundamental question about its consistency with the operation of Torrens Title. Ongoing obligations or rights in rem can be created by way of a restrictive covenant or an agreement made pursuant to s 173 of the Planning and Environment Act. In this case, the mechanism of the restrictive covenant was used. Conditions 16 and 17 provided for rights and obligations attaching to the land in question to be created by way of the registration of a restrictive covenant on the new titles.
Secondly, condition 18 is arguably inconsistent with the creation of building envelopes in a neighbourhood design plan, as required by condition 16. The creation of building envelopes contemplated the removal of vegetation within the envelopes without the need for Council approval.
Finally, condition 18 sits most comfortably with the suite of conditions that follow it – conditions 19 and 20 – which respectively limited topsoil removal without the consent of the Council and required topsoil disturbed ‘as a result of works permitted by this permit’ to be stockpiled for later redressing of the land. Conditions 19 and 20 were directed to the way in which the subdivision works were to be carried out. In my view, like conditions 19 and 20, condition 18 was directed to the carrying out of the subdivision works themselves.
The answer to the first question is therefore ‘No’. The subdivision planning permit is spent. Conditions 16, 17 and 18 have no further work to do and are of no force or effect.
Does restriction No 2 on the plan of subdivision have any legal effect?
Restriction No 2 was created upon registration of the plan of subdivision and prohibits the owners of lots 1 to 14 developing the land other than in accordance with an approved neighbourhood design plan.
A neighbourhood design plan was made and approved (or endorsed) pursuant to the subdivision planning permit on 13 April 2000 and again on 19 July 2000. In each case, the neighbourhood design plan did what was anticipated by condition 16, which was to restrict development on each of the relevant lots in the subdivision to within designated building envelopes.
Even though the subdivision planning permit is spent, this has no affect upon the ongoing operation of the restriction No 2, which is recorded as a restrictive covenant upon the titles that issued upon the registration of the plan of subdivision.
In her written submissions, and more faintly in her oral submissions, the defendant submitted that restriction No 2 was void for uncertainty because the neighbourhood design plan was ‘not to scale’ and it was therefore difficult to properly ascertain the dimensions of any building envelope.
I do not accept this submission. The neighbourhood design plan sets out dimensions for the building envelope for lot 6 and the distance between its boundaries and the lot boundaries. The dimensions of the building envelope can be ascertained. Counsel for the defendant effectively conceded that any difficulties understanding the requirements of a neighbourhood design plan because of the lack of scale could be overcome.
The answer to this question that restriction No 2 on the plan of subdivision has legal effect.
Is the permitted building in respect of lot 6 limited to the non-hatched area?
Yes. Restriction No 2 is valid, as is the neighbourhood design plan. Building on lot 6 may not occur in the hatched areas marked in the neighbourhood design plan.
Does the restrictive covenant and the neighbourhood design plan require lot owners ‘to protect and minimise clearance of existing vegetation on the lots’?
This is the heart of the dispute between the parties.
The plaintiff submits that it is apparent from the wording of the restrictive covenant that three obligations arise under it: to protect existing vegetation, to minimise the clearance of vegetation and to preclude building within the hatched areas.
For her part, the defendant submits that there is no obligation in respect of vegetation pursuant to restriction No 2 or otherwise.
Condition 16 of the subdivision planning permit required the preparation of a neighbourhood design plan ‘including building envelopes to protect and minimise clearance of existing vegetation on the lots’. It is clear that the purpose of the neighbourhood design plan and its designation of a building envelope for each lot was to protect and minimise the clearance of vegetation. However, the neighbourhood design plan does not make any reference to vegetation. It simply describes building envelopes for each of the relevant lots. The neighbourhood design plan is to be read in conjunction with the plan of subdivision. However, the plan of subdivision does not make any reference to the protection of vegetation either.
I am well satisfied that the imposition of building envelopes in the neighbourhood design plan was intended to protect the native vegetation on the subject land. The Moonah woodland found on the subject land is protected under the Flora and Fauna Guarantee Act 1988 (Vic). The Trengrove report was commissioned because the Council recognised the significance of the native woodland on the site of the proposed subdivision and, no doubt, its obligation to protect it. The building envelopes were conceived and configured to limit the amount of native vegetation that would be removed as a result of the proposed subdivision of the land for residential purposes.
This desire to protect the native vegetation on the subject land was also reflected in condition 18 of the subdivision planning permit which, in substance, required the subdivision works to be carried out with minimal interference with or damage to existing vegetation.
Unfortunately, however, the neighbourhood design plan, while describing building envelopes for each of the lots, does nothing further ‘to protect and minimise clearance of existing vegetation on the lots’. It does not expressly provide for the protection of vegetation or the minimisation of its clearance. Indeed, the neighbourhood design plan makes no reference to vegetation at all.
I have considered whether the neighbourhood design plan contains an implied obligation to protect the native vegetation on the subject land. This involves interpreting the neighbourhood design plan in the context of the controls of which it forms a part to decide whether it is permissible to ‘read in’ words to this effect.
In my view, it is not permissible to ‘read in’ such words. It is not apparent that the drafter of the neighbourhood design plan overlooked by inadvertence, and so omitted to deal with, an eventuality that was required to be dealt with if the purpose of neighbourhood design plan was to be achieved.[9] To the contrary, it is tolerably clear that the building envelope was the means chosen to address the mischief of native vegetation removal in the proposed Warrenbeen Court subdivision. The ambition to protect the native woodland as far as possible was translated into a control based on the imposition of a relatively small building envelope for each lot. In short, the building envelope was the mechanism chosen to protect the native Moonah woodland on the subject land. Neither the neighbourhood design plan nor the plan of subdivision contain any additional protective mechanisms and there is nothing in either that can be construed as imposing a direct prohibition on the removal of vegetation or a requirement to minimise its clearance.
[9]Wentworth Securities Ltd v Jones [1980] AC 74. See also Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [2.33].
The answer to this question is therefore ‘No’. However, this means that the building envelopes, as the only protective measure for the Moonah woodland, should be strictly enforced.
Are the neighbourhood design plans endorsed by the Council which post-date the registration of the plan of subdivision ‘approved’?
No, for the reasons already given.
Does a ‘building or part of a building’ include decking?
Section 3 of the Planning and Environment Act relevantly defines ‘building’ as follows:
‘building’ includes—
(a)a structure and part of a building or a structure; and
(b)fences, walls, out-buildings, service installations and other appurtenances of a building;
In O’Brien v Shire of Rosedale,[10] Gillard J identified three characteristics associated with the term ‘structure’:
First, the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value ...
Secondly, the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure …
Thirdly, there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation …
[10][1969] VR 112.
I have had regard to the deck shown in the building plans that have been included in the court book. A relatively large deck is proposed adjoining the two new pavilions. The deck is to be accessed via sliding doors from the pool pavilion.
The proposed deck is to be constructed by bringing together a number of distinct and separate physical components which, when constructed or brought together, form the deck. It is to be constructed at a fixed site, and to have utility value. It is not clear whether and, if so, how, the deck is to be affixed to the house. However, even if it is not affixed to the house, it will rest freely on its own weight, and will therefore assume the character of a structure. The deck is also clearly intended to remain permanently on the site and to be integrated into the design of the development.
In my view, the proposed deck is a ‘structure’ of the relevant kind and is therefore a ‘building’ under the Planning and Environment Act.
If the deck were not a ‘structure’, it would be an ‘appurtenance’. An ‘appurtenance’ is defined in the Macquarie Dictionary as ‘something accessory to another and more important thing; an adjunct’.[11] The proposed deck is an adjunct to the buildings and therefore a building within the meaning of the Planning and Environment Act.
[11]Macquarie Dictionary Online, 2016, Macquarie Dictionary Publishers.
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