Miller and Shire of Waroona
[2009] WASAT 238
•13 NOVEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MILLER and SHIRE OF WAROONA [2009] WASAT 238
MEMBER: MR P McNAB (MEMBER)
HEARD: 11 AND 12 AUGUST 2009
DELIVERED : 13 NOVEMBER 2009
FILE NO/S: DR 457 of 2008
BETWEEN: LYNETTE MILLER
Applicant
AND
SHIRE OF WAROONA
Respondent
Catchwords:
Town planning Development application Dogs in a rural area Approval sought for a 60 pug dog breeding kennel Land located in Rural 2 Irrigated Agriculture zone Discretionary use Rural zoning had de facto rural residential amenity expectations Further residential expansion proposed Amendment to scheme proposed Scheme amendment would prohibit kennels and catteries but leave piggeries etc as discretionary uses Whether proposed scheme amendment a 'seriouslyentertained' planning proposal Whether applicant in effect discriminated against by Shire Enactment of proposed scheme amendment imminent Weight to be given to proposed scheme amendment in such circumstances Amenity concerns relating to noise and odour EPA buffer zone recommended at 500 metres Whether expert and other material adduced sufficient to displace buffer zone concerns Whether approval should be for a fixed period of four years Whether approval should be made personal to the applicant Approval granted on conditions
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA)
Shire of Waroona Town Planning Scheme No 7
Result:
Application for review successful and conditional planning approval given
Category: B
Representation:
Counsel:
Applicant: Mr P McGowan
Respondent: Mr CA Slarke
Solicitors:
Applicant: Lewis Blyth & Hooper
Respondent: McLeods
Case(s) referred to in decision(s):
AGC Earthmoving Group Pty Ltd and Shire of Mundaring [2008] WASAT 151
Gilbert and Shire of Harvey [2006] WASAT 280
Phillips and Shire of Mundaring [2009] WASAT 193
Robertson and Shire of Murray [2009] WASAT 171
Stein and Shire of Chapman Valley [2006] WASAT 105
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant had sought planning approval to, in effect, transfer and expand her current pug dog breeding operation located in Hamel to another part of Hamel in the Shire of Waroona. The Shire of Waroona refused planning approval on the basis that an Environmental Protection Authority recommended buffer zone around such operations would be breached, and that amenity would be adversely affected by odour and noise.
In addition, there was a proposed town planning scheme amendment, very close to fruition, which, if and when enacted, would prohibit such activities in future cases.
The Tribunal decided to grant the applicant conditional planning approval for four years (and personal to her) on the basis that the current zoning permitted the activity and that the evidence relating to odour and to noise indicated minimal impact on existing neighbouring properties. The buffer zone was for guidance only, and its application to restrict development was always subject to site-specific evidence. Future amenity concerns, if any, relating to further residential development would be largely addressed by the fixed term of the development and the conditions to be imposed upon the applicant.
Although the Tribunal accepted that significant weight should be given to the proposed Scheme amendment, here the amendment seemed to have an element of discrimination in its effect and drafting, and the Tribunal declined to invoke its pre-legal status to deny the applicant her four-year planning approval.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
Result of and background to the review
In this matter, I have decided to allow the review and grant planning approval personal to Mrs Miller (applicant) for a period of four years on such other conditions as are agreed between the parties or are as determined by the Tribunal.
I first reproduce, as the history and background to the matter and as, in effect, the agreed facts (but with two amendments or clarifications), [2.1] [2.8] of the respondent's statement of issues, facts and contentions. This extract is as follows:
2.1The Applicant has sought from the Respondent approval to commence development pursuant to the Shire of Waroona Town Planning Scheme No. 7 ('the Scheme') for the development and use of land at Lot 27 Roberts Road, Hamel ('the Land') for dog kennels.
2.2The Land:
(a)is within the 'Rural 2 Irrigated Agriculture' zone designated by the Scheme;
(b)is 2.43 hectares in area, with frontage to Roberts Road;
(c)is cleared, and a dwelling and a shed have been developed on it; and
(d)is located approximately 650 metres from the Hamel townsite.
2.3The Applicant presently operates dog kennels at Lot 82 Riley Road, Hamel.
2.4The documentation and plans submitted with the proposal reveal that the development will involve the following:
(a)the breeding and boarding of up to 60 dogs, to be comprised by 30 to 50 breeding pugs, with a further 10 to 15 boarding pugs, or pug sized dogs;
(b)the dogs will be kept in a shed/kennel of 216 [square metres], plus 2 relocated kennels with areas of 24 [square metres] and 18 [square metres] respectively. It is proposed that an office will adjoin the shed;
(c)four to six dogs will be released in each of four dog runs for a total of 1 hour between the times of 7.00 am and 6.30 pm each day;
(d)dog droppings will be collected manually and disposed of via an on[-]site septic system;
(e)each of proposed dog pens will be hosed out daily and disinfected, with run off going to wastewater grates that will drain directly into leach drains;
(f)a 1,500 mm diameter septic tank and a 1,200 mm diameter sedimentation tank are proposed, which will be linked to two inverted 13 metre long leach drains shared with the existing residence; and
(g)a car parking area is proposed near the office but the number of spaces available has not been specified.
2.5Within the relevant zone dog kennels are presently an 'SA' use which means that the Council of the Respondent may, at its discretion and after notice of the application has been given in accordance with clause 8.2 of the Scheme and all submissions considered, permit the use.
2.6Advertising of the proposal took place in accordance with clause 8.2.3 of the Scheme, resulting in receipt of 14 submissions and a 68 signatory petition. Twelve of the submissions objected to the proposal, one submission supported the relocation of the Applicant's existing kennel, but did not support the operation of the proposed kennels on the Land, and one submission was a positive character reference for the Applicant.
2.7At its meeting of 28 October 2008 the Council of the Respondent resolved to refuse to grant planning approval to the application for the following reasons:
'1.The proposed dog kennels are contrary to the Environmental Protection Authority Guidance Statement No. 3 Separation Distances Between Industrial and Sensitive Lane Use in that eleven (11) dwellings are contained within the 500 metre buffer zone set aside for dog kennels in a rural area, and 33 dwellings are contained within the 1,000 metre buffer set aside for dog kennels near an urban area.
2.The approval of the dog kennels would be contrary to orderly and proper planning in that 44 dwellings are located within the buffer zones and are likely to be negatively impacted upon by way of noise and odour.
3.Council has resolved to amend the Shire of Waroona Town Planning Scheme No. 7 text to make kennels/catteries an 'X' (not permitted) use in the 'Rural 2 Irrigated Agriculture' zone in the recognition of the fact that small lot sizes are contained within the zone and will be impacted upon by kennels/catteries by way of noise and odour; and
4.The Applicant has not demonstrated that the wastewater treatment system will not lead to the potential contamination of groundwater.'
2.8The Council of the Respondent has resolved to grant final approval for its Scheme Amendment No. 12, and has forwarded the Amendment to the Minister for final approval. Among other things, Amendment No. 12 proposes to change the use class permissibility of 'Kennels/Cattery' to an 'X' (not permitted) use in the 'Rural 2 Irrigated Agriculture' zone.
The two clarifications offered by the applicant were to make it clear that, first, the development proposal is referrable to the breeding and boarding of pug dogs only, without precise specifications and proportional numbers thereof, but, secondly, there is still maintained a maximum number of dogs (at 60 dogs). I also note, from the applicant's oral evidence, an estimate of litters of five, and the existence of some 20 puppies on average.
The concern expressed in the respondent's statement of issues, facts and contentions as to wastewater disposal was properly abandoned by the respondent's counsel, Mr Slarke, when it became clear that the issue had been satisfactorily resolved. Likewise, it is not now contended that the proposal should be refused because it is breaches the 1,000 metre buffer set aside for dog kennels near an urban area.
The statement of issues, facts and contentions sets out all of the material facts, such as: identifying the subject land as Lot 27 Roberts Road, Hamel (Lot 27) in the Shire of Waroona; that the zoning for the land is Rural 2 Irrigated Agriculture under the Shire of Waroona Town Planning Scheme No 7 (TPS 7); that the size of the lot is 2.43 hectares; that there are some existing improvements on the subject land; and that the applicant did, at the time of the hearing at any rate, operate dog kennels nearby at Lot 82 Riley Road, Hamel.
As we have seen, the development proposal itself is summarised at [2.4] of the statement of issues, facts and contentions in terms of the size of the dogs, the nature of the proposed operation, and such other matters as its proposed operating hours. Certain additional matters are there contemplated which may well find their way into the conditions to be agreed or determined, as appears below.
Other aspects of the planning framework
There was some other relevant material in the respondent's statement of issues, facts and contentions, in relation to the planning framework, which were common ground and which should be emphasised. This material includes reference to the land's zoning under TPS 7 (see above); the nature of the objections received (a relevant matter under TPS 7); the formal reasons for refusal under TPS 7, as offered by the respondent; and, importantly, the fact that Amendment No 12 to TPS 7 (Scheme Amendment 12) was to come into force imminently. That amendment, when enacted, would, relevantly, prohibit a kennel or cattery in the currently applicable zoning. The status of this amendment will be considered below.
I should add to that brief rundown that a material additional planning consideration, as recognised or implemented by the respondent, was the Environmental Protection Authority's (EPA) Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses No 3, (June 2005), (EPA guidance note). The recommended separation distance or buffer zone for dog kennels and associated operations in rural areas is, under that instrument, 500 metres.
It is common ground that the applicant's proposal would not comply with that recommended separation distance. I will return to this matter below.
Issues to be decided
There were, in my view, three main issues to be decided in this review.
First, is Scheme Amendment 12 (which would, if and when it came into force, prohibit the applicant's operation) a 'seriouslyentertained' planning proposal, and if so, what would be the consequences of according that status to the amendment?
Secondly, there is the specific question of the EPA guidance note and the extent to which it gives way to sitespecific and expert evidence, and whether such evidence had been adduced in this case sufficient to displace the buffer zone concept set out in that instrument.
The third general matter, which overlaps with the other issues involved in this review, relates to orderly and proper planning. This head of inquiry relates to amenity issues, particularly noise and odour, and particularly in respect of the impact on properties in the immediate precinct, that is, properties near to or centred round Lot 27.
I should note at this point that the respondent's central submission was that the greater the departure from the EPA guidance note (that is, the buffer zone concept), the less consistent with orderly and proper planning the proposal would be.
Summary of the evidence received
The Tribunal records that it had regard to and received evidence in the form of witness statements, adduced on behalf of the respondent, from the following persons: six neighbours Ms Oremek, Mr and Mrs Hunter, Mr Bolton, Mr Brown and Ms Glenie; and three 'observers', one of whom was a neighbour, (Ms Reynolds, Ms McKittrick and Mr B McGowan). The Tribunal also received statements from a dog breeder, Mr D Barker, from a noise expert, Mr D Lloyd, and from a town planner, Mr A Pawluk.
On the applicant's side, statements were received from the applicant herself (Mrs L Miller), Mr G Watts, a noise expert, two veterinarians (Dr Schneider and Dr Kay, who both independently spoke in very positive terms about the applicant's current pug dog operation) and a local witness, Ms Holmes. Mr S Allerding, a town planner, also gave evidence for the applicant. Of those witnesses, only Ms Holmes was not crossexamined, and, sensibly, all of the respondent's neighbour and objector witnesses were also not called. The experts all gave concurrent evidence.
The respondent's case in summary
At first blush, the respondent's case against approval seems formidable. I mean no disrespect at all to Mr Slarke if I summarise the respondent's concerns in summary form as follows.
First, there is the existence of the 500 metre notional buffer recommended by the EPA guidance note, a concept well established in planning law, and indeed, to be given and I accept this contention significant weight as a planning control (see, for example, Gilbert and Shire of Harvey [2006] WASAT 280). From this fact, many things flow or are connected, including necessary concern about noxious by-products of a 'concentrated' dog operation, be they noise or odour impact. Substantial departure from that buffer which is, in effect, sought here by the applicant requires sufficient sitespecific evidence and a sciencebased departure from the recommendation, which, on Mr Slarke's submission, had not been forthcoming from the applicant, at least as regards to odour concerns.
Secondly, some 12 existing residents would be affected, being those residents presently within the buffer zone, with the possibility of at least two more potential dwellings coming on stream, these being more immediate neighbours who in the near future intended to build on nearby vacant land. It was further submitted that, over time, possibly more residences would also be affected, with at least one immediate residential proposal only about 80 metres from the proposed operation. Mr Slarke submitted that, in fact, approximately 37 rural lots would be likely to be found within the buffer zone.
The current zoning, Rural 2 Irrigated Agriculture, which is not a general farming or rural zone, only permits discretionary approval after advertising advertising which, it was emphasised, had reinforced various amenity concerns. Some of the objections received were based on allegations concerning the poor running of the applicant's then current, albeit smaller, operation. Mr Slarke also submitted that it appeared to be a premise of the Western Australian Planning Commission's endorsement of Scheme Amendment 12 that such amenity concerns might or would be justified.
Mr Slarke drew attention to the fact that the current zoning accommodated discretionary approval and included much larger lots, for example lots of 40 hectares, in the vicinity of the 'group' of 2 hectare lots which we were here concerned with larger lot sizes which, it was suggested, would make the implementation of the buffer zone feasible. The current 'group' lot layout of largely 2 hectare lots suggested lot sizes similar to rural residential or equivalent zonings, and indeed many neighbouring landholders, some of whom gave evidence, saw their amenity and lifestyle in such terms.
As to noise, it was submitted that, although it appeared that only one property, nearby Lot 15, would actually receive limited dog noise and this still had the capacity to be annoying, according to one of the noise experts other closer proposed dwellings on currently vacant lots might, in the future, be adversely affected by noise.
It was submitted that such amenity concerns that flowed from the contemplation of no or limited relevant development in the buffer zone itself, and the actual objections received, ought properly to justify future amenity concerns, which also ought to be taken into account. Compare, for example, nearby Lot 26 and Lot 28 and the possibility of limitations or restrictions on their future development.
Finally, it was submitted that conditional approval expressed through the imposition of adverse impact amenityreducing obligations on the proponent of the development might necessarily be difficult to enforce, given that their regulation would necessarily take place within a buffer zone with its premise that significant amenity concerns or land use conflicts were likely to arise, unless avoided by preventing certain other incompatible developments from taking place in the buffer zone.
Are these concerns sufficient to warrant refusal?
Do these concerns justify a refusal of planning permission? Mr Slarke hinted that a positive answer might be difficult to come by, saying: 'If by some reasoning the Tribunal is able to get to the point where an approval is appropriate …' (T:66, 12.08.09, emphasis added).
In my respectful view, I think that five main reasons may be advanced in answer to Mr Slarke's challenge. These reasons are thus the justification for the decision that I have reached today.
First, it is important to stress here that a fixed term approval is to be granted, limited to four years with land use conditions that include amongst other restrictions the continued personal involvement of the applicant. This fixed term takes into account, as factual matters within the Tribunal's recognition, that further dwellings are proposed for neighbouring lots, some well within the desired but notional 500 metre buffer zone, and that these properties would be likely to be adversely affected by noise, at least to some degree. This would be probably greater than for the one currently affected lot (Lot 15), which is likely to be directly affected from the commencement of the applicant's proposal.
Secondly, and relatedly, the combined effect of the experts' noise evidence indicates that, as mentioned, currently only one dwelling (on Lot 15) is likely to be directly affected and then, in my view, at a relatively marginal level. Indeed, at one point, Mr Lloyd, a noise expert called by the respondent, said that the owner of Lot 15 would 'just hear [the noise]' from the proposed development. The noise from pug dogs is accepted by both of the noise experts and the veterinary surgeons to be qualitatively less intrusive than in respect of other dog breeds. Otherwise, it is common ground that the proposal, as conditionally approved, would be compliant with the Environmental Protection (Noise) Regulations 1997 (WA).
Thirdly, it is important to emphasise the ordinary planning principle that rural zones are, generally speaking, prima facie the repositories for dog kennels and similar associated operations, absent their prohibition or, say, by them being dealt with in some other way (for example, by the creation of special kennel zones). Cf, Stein and Shire of Chapman Valley [2006] WASAT 105 (Stein) at [76]:
'[I]f a dog boarding or breeding establishment cannot establish in a rural zone, then where would it establish?' is an aphorism quoted from time to time in the Victorian Civil and Administrative Tribunal: see, eg, O'Reilly v Surf Coast SC [2003] VCAT 1433.
Here we are dealing with a rural zone, albeit one focused on irrigated agriculture. It is not currently zoned for a rural residential lifestyle, whatever the owners of lots in the area might, with respect, expect or think is the case. Kennels and associated operations are not yet prohibited, but understandably, the community is required to be consulted on such proposed uses.
Fourthly, what is ordinarily contemplated for or permitted within such a zone might ordinarily be regarded otherwise as the cause of land use conflicts, or raise amenity concerns to residents in rural zones or to persons who might, with respect, unrealistically expect that they have a rural residential lifestyle in zones not currently designated for this land use, a description which, with respect, attaches itself to some of the objectors in this case. As suggested by Mr Allerding, who was called to give evidence by the applicant, noise from a variety of sources, including machinery and equipment, and from farm and domestic animals, and odour from farm animals and farm operations are an incident of lawfully permitted (or contemplated) ordinary rural operations and activities (cf Robertson and Shire of Murray [2009] WASAT 171, at [63] [64]; AGC Earthmoving Group Pty Ltd and Shire of Mundaring [2008] WASAT 151, at [91]) . In my respectful view, the applicant's operations are not that far removed from such activities hence their possibility of approval in the current zoning.
Fifthly, the EPA recommended buffer is always to be considered as guidance only, even though significant weight ought to be attached to it. I think that, in the context of this review and it must always be applied in the context of a particular review and a particular set of facts it is a starting point that imposes upon the applicant a practical onus of discharging a prima facie prohibition on her proposed development. But the practical onus here seems to be limited to two aspects only, noise and odour. As I have already indicated, the expert evidence as to noise suggests a marginal impact upon one current lot owner. Others may be affected in the future, but the fixed term approval (and the conditions to be imposed) substantially address that concern, when and if such development eventuates.
Although the EPA guidance note contemplates that odour might be a potential problem, the evidence suggesting an odour problem here, short of an adequate waste disposal system acceptable to the respondent otherwise limiting the same, is extremely limited. Mr Allerding thought that any such problem, if there be any, would disappear with a properly regulated waste disposal system that, after all, was its intended purpose. Mr Pawluk, who was called to give evidence by the respondent, appeared to suggest that it was notorious that dogs were malodorous. It might be suggested that, for that matter, so are other farm animals.
In any event, and with respect to him, Mr Pawluk's perceptions would not seem a proper basis for the refusal of the proposal and I prefer the evidence suggesting that any odour problems would largely be ameliorated by proper onsite or other waste disposal practices. In any event, the current separation distances to the nearest dwellings that is, 230 metres to the nearest and 320 metres to a further three dwellings - combined with proper on-site waste disposal practices, will significantly address these amenity concerns.
Accordingly, the EPA concerns underlined in the recommended generic buffer zone have been satisfactorily addressed in this case.
Proposed Scheme Amendment 12
I turn to the issue of the weight to be given to proposed Scheme Amendment 12. This is the critical, remaining issue. Mr McGowan, for the applicant, properly conceded that the Scheme amendment was a seriouslyentertained planning proposal and one that was significantly advanced in the processes of government. In fact, its implementation is imminent. In ordinary circumstances, because of that fact alone, I might well have considered refusal of the proposal on discretionary grounds indeed, refusal might have been the inevitable outcome of this review. But the circumstances here are far from ordinary.
The setting aside of the status of this instrument requires, in part, considerable burrowing into the history of the applicant's relationship with the respondent. Mr McGowan pointed out, I think, two significant interrelated local matters that warrant departure from what might have been considered the inevitable and ordinary course of events.
But first, by way of background, I should mention and this was not directly alluded to by Mr McGowan that Scheme Amendment 12 was perhaps in part based upon an incorrect premise, namely, a suggestion that there was a previous Tribunal decision favouring the applicant in respect of her nearby current pug dog operation, a decision which, in effect, should be overruled by a Scheme amendment.
It is true that there was a Tribunal decision in 2004 favouring the applicant's position. Importantly, however, this was a consent decision expressed in formal consent orders without any hearing on the part of the former Tribunal. Still, I suppose that it is possible that later, after these consent orders were made, the respondent developed reservations about the approval (whether in terms of particular complaints see below, or more generally) and decided to take steps to prohibit kennels and related activities in the zone.
In any event, Mr McGowan raised two arguments. First, he submitted that the Scheme amendment leaves in place discretionary planning decisions with respect to many potentially equally noxious activities, such as piggeries and poultry farms and the like. I think that is an important consideration in assessing the effect of Scheme Amendment 12.
Relatedly, Mr McGowan submitted, in effect, that the Scheme amendment had elements singling out the applicant for special treatment; that is, there was an element of unjustifiable discrimination leading to a prohibition against the applicant and any future proposal of hers. I stress that this is the possible effect of what was done, especially where other noxious activities are not to be prohibited. It may well not have been the dominant intention of the respondent's agents, but certainly that was arguably its effect.
I accept that these matters are relevant and have been made out sufficiently, and otherwise provide an adequate context to the background to and the coming into force of proposed Scheme Amendment 12, such that one could, in the somewhat unusual circumstances of this case, disregard Scheme Amendment 12's otherwise compelling status.
For these reasons, notwithstanding that the Scheme amendment is a seriouslyentertained planning proposal very close to enactment, in my view it should not be given such weight or application so as to deny the applicant her proposal, conditionally approved as I have indicated.
Conditions
I turn to the question of the conditions to be imposed upon the development approval, and certain related matters. I will first give some brief reasons in relation to the proposed four-year term of approval.
In my opinion, four years is a reasonable term, given that the approval will be personal to the applicant (cf Phillips and Shire of Mundaring [2009] WASAT 193 at [41] [42]; and Stein at [87] [88]) and that the surrounding area is earmarked for further residential development, albeit of a de facto rural residential type. No less important is that both the State and the local governments have made clear their desire to prohibit such future activities. Whatever the position is in relation to that proposal as 'seriously entertained' for its 'prelegal' effect, that stance should otherwise be respected, and that can be reflected in a fouryear term.
I have to say that the applicant did not present well as a witness in this Tribunal. She also seems to attract her fair share of controversy, if not complaint. Still, there is no doubt at all that she is an expert with respect to pug dogs and their breeding, and in this regard, as mentioned, she was fully supported by two independent veterinarians. In any event, she is not on trial here, but she has a considerable incentive, given these conditions, to avoid such controversies in the future and to comply with the conditions which will be imposed upon her.
I note that many of the operational conditions have been agreed to as between the parties. Proposed conditions 2, 3, 4 and 6 as sought by the respondent have been agreed to, and condition 5 was, in substance, agreed to. That leaves what appears to be partial agreement as to sound attenuation (condition 1), but there is total disagreement with respect to the need for additional fencing (condition 7). There may also be some outstanding issues that emerged during the hearing as to the dimensions of the operation and its operating hours on Sundays and public holidays.
I will therefore direct the parties to negotiate on these outstanding matters in good faith, consistently with these reasons and what has already been agreed to between them, and to bring them in for consent orders to be made by the Tribunal. If that cannot be done then we will have to deal with it by way of a short hearing, and I have therefore listed the matter for directions at 2.15 pm on 6 January 2010, unless the matter is vacated by the receipt of consent orders.
Orders
For these reasons, I make the following orders:
1.The application for review is allowed.
2.The decision under review is set aside, and in substitution thereof there will be a decision granting planning approval personal to the applicant for a period of four years on such other conditions as are agreed between the parties or are as determined by the Tribunal.
3.The parties are directed to negotiate with each other in good faith to produce a set of appropriate final conditions, not inconsistent with the reasons for decision of the Tribunal and the agreement between them as to conditions, such agreement already on the record, to be filed by the respondent within 28 days of the date of this decision.
4.The matter is to be listed for directions (unless vacated by consent) at 2.15 pm on 6 January 2010.
5.Liberty to apply is reserved to the parties.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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