Tooth v City of Subiaco
[2005] WASAT 317
•26 OCTOBER 2005
TOOTH and CITY OF SUBIACO [2005] WASAT 317
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 317 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:370/2005 | 18 MAY 2005, 9 JUNE 2005 | |
| Coram: | MR P McNAB (MEMBER) | 26/10/05 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application for review is dismissed 2. The decision to review is affirmed | ||
| B | |||
| PDF Version |
| Parties: | DAVID CHRISTOPHER TOOTH CITY OF SUBIACO |
Catchwords: | Town planning Development approval of carport Older suburb near to city 1930's Californian bungalow Written policies of local government designed to preserve streetscape Argument that policies were irrelevant and futile given despoliation or deterioration of existing streetscape Discussion of "horse has bolted" argument in planning law Tribunal finding that policies made and issued having regard to such circumstances and accordingly still had preservation work to do No evidence of material or relevant departure from policies by local government Duty of Tribunal not to undermine regulatory regime Policies applied by Tribunal Application refused |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 41(2)(g), cl 78, Sch 1 Town Planning and Development Act 1928 (WA) |
Case References: | A & S Valente & Associates Pty Ltd v Monash CC [2004] VCAT 1568 Craig v Port Philip City Council (1997/11378), a decision of the Administrative Appeals Tribunal of Victoria Planning Division Laslett v District Council of Mt Gambier (1984) 54 LGRA 415 Martin and the City of Subiaco [2003] WATPAT 31 Robertson and Macedon Ranges SC [2004] VCAT 1948 (29 September 2004) Trickey and the City of Subiaco [2005] WASAT 256 Weir, R and Anor v the Western Australian Planning Commission [2003] WATPAT 66 Wheeler v Greater Geelong CC [2005] VCAT 1035 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : TOOTH and CITY OF SUBIACO [2005] WASAT 317 MEMBER : MR P McNAB (MEMBER) HEARD : 18 MAY 2005, 9 JUNE 2005 DELIVERED : Edited reasons delivered extemporaneously on 26 OCTOBER 2005 FILE NO/S : DR 370 of 2005 BETWEEN : DAVID CHRISTOPHER TOOTH
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development approval of carport - Older suburb near to city - 1930's Californian bungalow - Written policies of local government designed to preserve streetscape - Argument that policies were irrelevant and futile given despoliation or deterioration of existing streetscape - Discussion of "horse has bolted" argument in planning law - Tribunal finding that policies made and issued having regard to such circumstances and accordingly still had preservation work to do - No evidence of material or relevant departure from policies by local government - Duty of Tribunal not to undermine regulatory regime - Policies applied by Tribunal - Application refused
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Legislation:
City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 41(2)(g), cl 78, Sch 1
Town Planning and Development Act 1928 (WA)
Result:
1. The application for review is dismissed
2. The decision to review is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr M Casselton
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
A & S Valente & Associates Pty Ltd v Monash CC [2004] VCAT 1568
Craig v Port Philip City Council (1997/11378), a decision of the Administrative Appeals Tribunal of Victoria Planning Division
Laslett v District Council of Mt Gambier (1984) 54 LGRA 415
Martin and the City of Subiaco [2003] WATPAT 31
Robertson and Macedon Ranges SC [2004] VCAT 1948 (29 September 2004)
Trickey and the City of Subiaco [2005] WASAT 256
Weir, R and Anor v the Western Australian Planning Commission [2003] WATPAT 66
Wheeler v Greater Geelong CC [2005] VCAT 1035
Case(s) also cited:
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Nil
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Summary of Tribunal's decision
1 This review was essentially concerned with whether a carport, which was proposed to be built at the front of a "California bungalow"-style home in Subiaco, was consistent with certain local planning policies of the City of Subiaco.
2 The applicant argued that the policies had no application to his circumstances given the nature of the immediately surrounding streetscape and the minimal impact of his sympathetic design.
3 The Tribunal disagreed and held that the local policies had application to his proposal and that his proposed carport would be inconsistent with their intent. Further, the Tribunal held that simply because examples could be provided showing some deterioration of the streetscape, it did not mean that the policies ceased to have work to do, including preventing the further deterioration of streetscape. The policies were made and issued in the light of those circumstances.
4 The Tribunal, in its reasons, discussed the concept of the "horse has bolted" as an argument available to decision-makers in planning matters.
5 The Tribunal dismissed the application for review.
Introduction
6 This review concerns land at No 35 Hardy Road, Nedlands which has built upon it a "Californian bungalow"-style home on 491 square metres, built in the 1930's with a 1925 style. Extensions at the rear were added in 1981 reducing the open space in the backyard. A car park hardstand located in the front setback has been there for some 20 years. That is the location of a proposed carport, rejected by the respondent, that is at the core of this review.
Tribunal proceedings history
7 In February this year a proposal for a rear single garage (accessed by the rear right of way), a rear brick wall and a front carport at Hardy Road was approved by the respondent but with the deletion of the carport proposal. That proposal had originally been lodged in August 2004 but this approval relates to an amended or revised proposal from December 2004. Although invited to by the applicant, it is unnecessary to
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- go into the precise planning history any further as this is a fresh look at the February decision in relation to the carport proposal.
8 In March 2005, a review was sought in this Tribunal, in effect, of so much of the decision that deleted the carport proposal. After a directions hearing the matter was heard in May and June of this year with final written submissions and material received from the parties in late June 2005.
9 Mr Tooth was unrepresented and did not call any expert evidence. He did however produce voluminous, well-organised and informative material in the form of colour photographs and what was in effect a neighbourhood survey showing what he alleged were possible inconsistencies or incongruence in the application of the respondent's policies or decisions (referred to below), or alternatively the futility of the application of those policies.
10 The respondent was represented by one of its senior officers and called expert evidence in the form of one of their planning officers. That officer, Mr Ford, was subject to extensive cross-examination by Mr Tooth. In short, the respondent vigorously resisted the allegations of inconsistency, incongruence or futility. This debate will be returned to below.
Planning framework
11 The zoning of the land is R20 under the respondent's City of Subiaco Town Planning Scheme No 4 (TPS 4).
12 The Tribunal, like the original decision-maker, has had regard to TPS 4 cl 27(4) which refers to the need to have regard to local planning policies and the Residential Design Codes 2002 (R-Codes) as well as general principles of planning. Martin and the City of Subiaco [2003] WATPAT 31 cited by Mr Tooth, was a case where the issue was whether a carport met the local planning policy in terms of primary street frontage. There, the location was found to be acceptable as regards site lines, but the review failed because of the narrow dimensions and safety factors, in accordance with performance criteria under the R-Codes.
13 The case demonstrates the interrelationship between the R-Codes and policies and how they might lead to cumulatively more - not less - restrictions, contrary to Mr Tooth's submission that they could be regarded as alternative standards. However, that case as regards its merits is not strictly relevant to this case as the respondent's case here is that the
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- application fails by reference to the relevant policies alone, a point that they have succeeded on.
14 A recent case in this Tribunal, Trickey and the City of Subiaco [2005] WASAT 256 more relevantly shows the interrelationship of the R-Codes and local policies. Reference may be had to that case (which dealt with a street near to Hardy Street) for detailed discussion of the planning instruments also applicable here, other than as regards a local precinct policy (which is absent here).
15 Clause 41(2)(g) of TPS 4 refers to established streetscape. A general, but familiar, definition of streetscape appears in Sch 1 of that scheme. It is unnecessary to set out that definition in these reasons.
16 Under cl 78 of TPS 4, it is provided that the Council may make local planning policies consistent with the scheme.
17 It is common ground between the parties that the 2001 "Residential Car Parking Policy" (RCPP), the draft "Streetscape and Neighbourhood Character (R15 and R20) Policy" (SNCP) and the draft "Streetscape and Building Height Standards (R15 and R20) Policy" (SBHSP) govern or affect this review. It is unnecessary to set out in these reasons particular clauses of these instruments, as they appear in the written submissions on both sides and are referred to generally below. (For convenience of reference regard may be had to those clauses as they appear in Mr Ford's statement of evidence; this analysis by Mr Ford is not disputed by Mr Tooth, only Mr Ford's view of their application or interpretation is).
18 From the minutes of the respondent of 26 October 2004 authorising adoption of a draft SNCP for advertising in accordance with TPS 4, the stated objective was "to preserve streetscape character". This policy was a draft policy and so marked in this hearing but it is relevant to the planning framework. A heavy emphasis in that document is placed upon maintaining the existing character of Subiaco: this is a common theme of all of the relevant policies.
19 The RCPP adopted in September 2001 provides relevantly that a carport is an unenclosed roofed car parking structure (at page 1). Importantly the "least acceptable option" (at page 3) is to locate a car parking structure within the front setback area. Exceptions, such as for topography and for want of a practical alternative are of course provided for in the policy. They are mentioned further below.
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20 The Tribunal is satisfied that the policies referred to above are authorised in the planning framework. They are transparent in their adoption and application, rational in their drafting, clear in their overall intent with aims and values that an elected local authority is entitled to, if not nowadays compelled in places like Subiaco, to adopt. This is likewise, in the Tribunal's view, the unstated premise in Trickey and the City of Subiaco to which reference has already been made.
21 Crucially, it may be noticed at this point that such policies were drafted and brought into force in full knowledge of the diversity of Subiaco's existing streetscapes and their imperfections, matters fully conceded in any event by the respondent. The authors and promulgators of the policies knew, in other words, of the very things that Mr Tooth has complained about as, in effect, incongruent with the intent of the policies, or perhaps which make the policies difficult to apply in the circumstances of his case.
22 The fact that they may be regarded or criticised as a counsel of abstract perfection does not detract from the point that they can be both aspirational and recognise the existing state of Subiaco's urban development. In any event, in the ordinary course this Tribunal must attempt to apply them for the sake of consistency in administrative decision-making in the planning area. This also is an unstated premise of Trickey and the City of Subiaco.
The reasons for refusal in February
23 The February decision, of rejection by the respondent, was upon the following basis:
1. There was a failure to meet the locational standards of the residential car parking requirements of the RCPP.
2. The proposal did not meet the setback objectives in the SNCP and did not accord with the streetscape character.
3. The proposal did not meet front setback standards having regard to surrounding development in the SBHSP.
The applicant's case in these proceedings
24 In summary, Mr Tooth submitted that:
1. His proposal is consistent with the R-Codes.
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- 2. His proposal would not detract from either the streetscape or amenity that had in any event been visually compromised over the years; there were no reasonable prospects for this to be reversed. He submitted that "the horse had bolted" in terms of preserving streetscape.
3. The alternative, namely a garage at the rear that is larger than his slightly oversized single car garage currently approved by the respondent, would take away his garden and open space and lessen solar accessibility. He relied here specifically on the R-Codes.
4. A carport would also be desirable to prevent damage to his vehicle from sources such as trees and the sun.
25 As to the application of the relevant policies, Mr Tooth first submitted that the permitted variations in the RCPP (in terms of the existing patterns of parking in the immediate vicinity, or parking that would enhance the desired streetscape) were applicable to him.
26 Also, the RCPP – if not the R Codes (at cl 4.3.5) – acknowledged situations where parking at the rear could be difficult in terms of manoeuvrability and safety.
27 Next, as to the SNCP, he submitted, in effect, that the R-Codes govern the case over local policies.
28 Finally, as to streetscape (wherever a determinative factor) he submitted that for Hardy Street there was a plethora of different styles, high walls, inappropriate trees and hedges and the like. The streetscape was, he submitted, no longer relevantly homogenous.
The respondent's case in these proceedings
29 In summary, the respondent's case was as follows:
1. The proposal was not consistent with the various policies identified above.
2. The structure would not contribute positively to local amenity.
3. If the proposal were approved then there would be a further incremental shift away from policy objectives.
4. The data shows that as regards the immediately surrounding locality of Hardy Road north, only a relatively
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- small percentage of properties do not meet the policies' standards.
- 5. The broader locality figures, although higher in terms of compromise or non-compliance, do not set or justify a relevant precedent.
6. The existing hardstand could remain and there were viable other locations for car parking structures on Mr Tooth's land; problems with trees and the like could potentially be resolved within other Council forums.
30 It was also submitted by the respondent, in regard to the RCPP, that in its terms it favours more acceptable alternative methods of access, if available, over access from a principal street, unless consistent with existing patterns of access to that street. The respondent submitted that Hardy Street is a principal street and that there is a rear right of way. The respondent says that under the RCPP a double car-width structure could be built, other than in the front setback. Topography would not prevent this occurring on the subject land.
31 As to the pattern in the "immediate vicinity" (which is defined as meaning two to three houses on either side or opposite the subject land), only one out of a possible seven structures – and that one was built in 1991 - has a structure in the front setback, according to the respondent's survey. This was not a relevant pattern according to the respondent.
32 As a matter of opinion it was said that a carport built at the front would not enhance a 1930's Californian bungalow. Also, as a matter of opinion it was demonstrated that with an alternative design of just 1.55 millimetres increase in width of the current slightly oversized approved garage, two car parking bays could be accommodated.
33 As regards SNCP, the opinion was expressed by reference to identifying data that the established setback pattern on Hardy Street would be inconsistent with the applicant's proposals: cl 3(a). Apart from three examples on the street, it was submitted that all properties had a consistent setback of around six metres.
34 Likewise, in respect of the policy's requirements for consistency and setbacks in relation to the existing dwellings under cl 3(c).
35 Importantly, the respondent drew attention to cl 3(d) of the SNCP that favours RCPP over any requirement of the R-Codes - a matter which, the Tribunal interpolates here, both the R-Codes and TPS 4 envisage.
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- Whilst the R-Codes might be met here, the proposal would still be inconsistent with the RCPP. A similar position was said to apply as regards SBHSP where 80% of properties in the relevant area in relation to the subject land, there defined, met existing standards.
36 As to the questions of inconsistency of approvals, Mr Ford gave evidence that only two properties (in Waverley Street), had been approved after the RCPP came into effect in September 2001, that is No 9 (in 2002) and No 46 Waverley Street (in 2003). This figure was derived from a list of 23 cases of alleged inconsistency in previous Council decisions by the applicant and investigated by the respondent.
37 It is undoubtedly the case that, as the minutes produced show, in each case the planning officer was overruled and further that there existed special circumstances (in the nature of undersized lots, limited outdoor living space, inadequate rear manoeuvring distances and existing built form restrictions on rear parking, or an already markedly and significantly compromised existing streetscape), that justified approval.
38 The Tribunal interpolates here that with all respect to Mr Tooth such allegedly comparative material is simply not relevantly similar or applicable to his circumstances, at least on the other evidence available to the Tribunal. And even if it were, the most careful examination would still be needed to justify such departures from an otherwise generally consistently applied policy. It is, however, unnecessary to explore this precise issue further.
39 Finally, Mr Ford demonstrated (at [10] of his witness statement), that the applicant's concerns about reduced solar amenity and a compromised rear outdoor living area from an enlarged double car garage were not justified in planning terms.
40 As has been mentioned, Mr Ford was cross-examined at considerable length, both on his expert evidence and the opinions that he had expressed. He left that cross-examination unscathed in the Tribunal's view, and no expert evidence was called in rebuttal.
Further evidence
41 After the hearing concluded the parties made, by leave, submissions in regard to 17 Megalong Street, where it appears, from the respondent's minutes of July 2002, that there was approved a carport on an existing hardstand despite provisional low-level heritage status.
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42 The factors in the decision-making there were the quality of the development (possibly like the case here); a lack of neighbourhood objections (as here), and that a backyard carport (using a right of way) would impinge on recreation and solar aspects (points argued here).
43 However, crucially the owners in that case had a quadriplegic son and his access was specially noticed as an exceptional circumstance but with a warning from the planning officer that ad hoc approvals "would eventually change the streetscape character typical of the City".
44 The respondent also distinguished this precedent by producing figures that demonstrated that Megalong Street has a substantially greater number of parking arrangements located other than at the rear of the property accessed from the right of way. Likewise, it was similarly submitted with respect to 14 lots in the "immediate vicinity" of 17 Megalong Street.
45 Finally, unlike Megalong Street, the subject land already has an approved single width garage which, it was said, if slightly increased in width could meet the requirements of the R-Codes leaving approximately four times the minimum outdoor living area as opposed to 5 square metres under the minimum in comparison to Megalong Street. None of these assertions was challenged by expert evidence.
Discussion of the case and findings
46 At the outset the Tribunal notes that it accepts the expert evidence and data offered by the respondent in regard to existing amenity, streetscape, comparative material and the rebuttal of Mr Tooth's concerns regarding solar and outdoor amenity.
47 Next, it is convenient to note here that the Tribunal does accept in principle Mr Tooth's argument that "the horse has bolted" is available in planning law and practice. Thus it was so decided in Robertson and Macedon Ranges SC [2004] VCAT 1948 (29 September 2004) at [27]; Craig v Port Philip City Council (1997/11378), a decision of the Administrative Appeals Tribunal of Victoria Planning Division and in A & S Valente & Associates Pty Ltd v Monash CC [2004] VCAT 1568 at [9]. Finally, there is Laslett v District Council of Mt Gambier (1984) 54 LGRA 415, where the findings of the South Australian Planning Tribunal referred to that concept. On appeal, that reference went unremarked on by the Supreme Court of South Australia.
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48 However, this Tribunal does prefer the general approach of the Victorian Civil and Administrative Tribunal in Wheeler v Greater Geelong CC [2005] VCAT 1035 where it was said (at [15], emphasis added):
"Although I appreciate the point made [by counsel] that a proposal for a two storey [sic] detached dwelling may not trigger any planning permit thereby limiting the extent to which these objectives and the preferred character can be achieved, I prefer the other side of that argument being that there is still an opportunity to achieve what the Scheme is advocating – this is not a situation where the 'horse has bolted' so that the outcomes cannot be attained."
49 Against this background of findings, and the discussion, in part, of applicable planning principles, the Tribunal turns to the present case.
50 In the Tribunal's view, Mr Tooth has been unable to produce sufficient material to suggest that the respondent has been either inconsistently applying its policies or that the policies had no relevance to his situation either in terms of their own exceptions and qualifications or more generally. This is despite his considerable effort in producing a prodigious amount of photographs of his street and surrounding thoroughfares and his cross-examination of Mr Ford. Further, as referred to above, other expert evidence of the respondent is accepted by the Tribunal.
51 Mr Tooth's case is largely based upon a visual assessment by Mr Tooth only, and then of a fairly wide area in the neighbourhood. He did not call any expert evidence and with all respect to him his on-site building expertise does not qualify him as an expert.
52 In short, Mr Tooth pointedly refused to accept two matters which, if accepted, weaken - probably terminally - his argument. These matters are:
1. That the vast majority of the offending structures identified by him were approved or permitted prior to the subject policies' dates of effect; and
2. That it does not follow that such past approvals in any event set the intent of the policies at nought, or mean that there is no relevant remaining original streetscape for them to operate on.
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53 The Tribunal accepts that these two points or arguments are made out by the respondent. Patently, the policies continue to have scope for operation especially in the immediate vicinity of the applicant's land. Unfortunately for the applicant his land and his development application (and that of relevant neighbours in the same position, if any) is the premise for the continued effect of a relevant policy.
54 In Weir, R and Anor v the Western Australian Planning Commission [2003] WATPAT 66 the former Tribunal said (at [17] - [18], emphasis added):
"The Tribunal has previously indicated in dismissing a similar appeal (DK & MF Cooper v Western Australian Planning Commission (2002) TPAT 14 Nos 18 & 85 of 2001, [sic] that 'While precedent cannot be a final determent [sic, determinant] in any case, the effect of allowing this appeal would be to set at nought the intentions of Council in response to what it perceives as the general community interest'. That conclusion holds good in this appeal [original emphasis].
The R Codes and current WAPC policy provide a degree of flexibility to allow a variation to the standards prescribed in the Codes. In my view that flexibility does not extend to a variation in standards that would amount to an abandonment of those standards. The WAPC (and the Tribunal) should not accede to a proposal that would effectively ignore standards that have been developed through thoughtful and well-reasoned research and community involvement …"
55 Although that case was dealing with the Western Australian Planning Commission, densities and a sub-division, these statements of planning principle have direct application here.
56 There was considerable debate on the scope and patterns of the streetscape, the percentage of carport structures, whether the majority of structures were compliant, then and now, and what constitutes the "immediate vicinity" (or similar terms) near to the subject land. As has been mentioned, a large number of photographs have been placed in evidence. Ultimately, however, such debates are largely irrelevant to the issue to be decided because of the Tribunal's essentially impressionistic judgment (but one supported also by data and opinion evidence) that the subject land and sufficient of the immediately surrounding properties are and ought to be preserved by the application of the policies referred to.
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- The evidence, which has been accepted, very clearly shows that the policies are being substantially met currently in their own terms.
57 That judgment of the Tribunal was reached by close examination of photographs and maps tendered and also in acceptance of the material, expert evidence of Mr Ford. It is important to note that the respondent and its witness fully accepted that the surrounding neighbourhood was filled with examples that nowadays would not or might not be approved. But that surely is the point: that by today's more informed and regulated standards such examples would not pass muster. It is not for the Tribunal to undermine that regulatory regime.
58 Likewise, the respondent, as the Tribunal understands its position, properly conceded that some examples pointed to by Mr Tooth might have aesthetically pleasing aspects. However, such concessions do not point to the abandonment or futility of the policies under consideration. The Tribunal reiterates the point made above that these policies, found to be valid and applicable, must be applied in the knowledge that they were drafted with reference to the status quo and must be construed and applied in that light.
59 The policies in issue are directed towards "holding the line": that line could not be said to have been relevantly "abandoned", as a question of fact, in the Tribunal's view. There is still work for the policies to do and that work affects Mr Tooth's plans, unfortunately for him.
60 Moreover, approval here may lead to the possibility of a trend of further decisions undermining the policies which would be neither desirable in terms of proper planning principles, nor in regards to the role of the Tribunal as a decision-maker with consistency in mind.
61 The Tribunal adds that such a result in this case is entirely consistent with the result and the reasoning in Trickey and the City of Subiaco, where arguments broadly similar to those advanced by the applicant here (but, unlike here, backed by expert evidence) were similarly rejected in favour of carrying out these same local policies as they were plainly intended to operate.
62 In Trickey and the City of Subiaco the applicant likewise failed to have their approval for a front carport in the primary setback in Kanimbla Road upheld on review.
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Conclusions and orders
For these reasons the application for review is dismissed and the decision under review is affirmed.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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