Tran v Town of Vincent
[2006] WASAT 316
•30 OCTOBER 2006
TRAN & ANOR and TOWN OF VINCENT [2006] WASAT 316
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 316 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:81/2006 | 4 JULY 2006 (FURTHER WRITTEN SUBMISSIONS RECEIVED 31 JULY 2006) | |
| Coram: | MR P McNAB (MEMBER) MS R MOORE (SESSIONAL MEMBER) | 30/10/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | THANH CHI TRAN PHUONG NGOC TRAN TOWN OF VINCENT |
Catchwords: | Town planning Development application for demolition Heritage considerations 1930s bungalow in North Perth Property entered upon local Municipal Heritage Inventory Absence of State listing Scheme policies required conservation of such properties Aesthetic, historical, social values and cultural heritage significance discussed Differing views of heritage experts Extent of discretion under scheme when demolition refused Whether scheme required an accompanying development approval Relevance of development bonuses for preservation work Interpretation of heritage values State of intactness of subject property Inclusion in inventory found, in effect, to be justified Demolition refused by Tribunal Application dismissed |
Legislation: | Heritage of Western Australia Act 1990 (WA), s 45 Residential Design Codes of Western Australia 2002 Town of Vincent Town Planning Scheme No 1, cl 20, cl 23, cl 27, cl 38(5), cl 38(5)(a), cl 38(5)(b), cl 38(5)(g), cl 38(5)(h), cl 41, cl 41(c), Pt 3 |
Case References: | Bright & Ors and Town of East Fremantle [2003] WATPAT 22 Filton Pty Ltd and Town of Vincent [2006] WASAT 70 Daniele v Shire of Swan (1998) 20 WAR 164 Moullin v Town of Cottesloe [2002] WATPAT 23 |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : TRAN & ANOR and TOWN OF VINCENT [2006] WASAT 316 MEMBER : MR P McNAB (MEMBER)
- MS R MOORE (SESSIONAL MEMBER)
- PHUONG NGOC TRAN
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application for demolition - Heritage considerations - 1930s bungalow in North Perth - Property entered upon local Municipal Heritage Inventory - Absence of State listing - Scheme policies required conservation of such properties - Aesthetic, historical, social values and cultural heritage significance discussed - Differing views of heritage experts - Extent of discretion under scheme when demolition refused - Whether scheme required an accompanying development approval - Relevance of development
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bonuses for preservation work - Interpretation of heritage values - State of intactness of subject property - Inclusion in inventory found, in effect, to be justified - Demolition refused by Tribunal - Application dismissed
Legislation:
Heritage of Western Australia Act 1990 (WA), s 45
Residential Design Codes of Western Australia 2002
Town of Vincent Town Planning Scheme No 1, cl 20, cl 23, cl 27, cl 38(5), cl 38(5)(a), cl 38(5)(b), cl 38(5)(g), cl 38(5)(h), cl 41, cl 41(c), Pt 3
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicants : Ms S Klarich (Acting as Agent)
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicants : N/A
Respondent : SJB Planning and Urban Design
Case(s) referred to in decision(s):
Bright & Ors and Town of East Fremantle [2003] WATPAT 22
Filton Pty Ltd and Town of Vincent [2006] WASAT 70
Case(s) also cited:
Daniele v Shire of Swan (1998) 20 WAR 164
Moullin v Town of Cottesloe [2002] WATPAT 23
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Summary of Tribunal's decision
1 This matter before the Tribunal concerned the extent to which "heritage values", expressed in planning instruments, could be applied to prevent the demolition of a 1930s house in North Perth. The case arose as an application to the Tribunal for a review of a decision by the Town of Vincent to refuse the demolition of a bungalow located in Charles Street, North Perth. The bungalow had a long and direct association with the well known Perth dairy family, the Brownes.
2 The property was listed on the Town of Vincent's Municipal Heritage Inventory in management category A, which indicated that "conservation [was] essential". The Tribunal heard evidence from two heritage experts and inspected the bungalow. Despite some minor alterations, the Tribunal found that the bungalow was largely unchanged, both internally and externally.
3 The Tribunal accepted that the bungalow had significant historical, aesthetic, cultural and social heritage values and affirmed the respondent's decision. In effect, the inclusion of the land on the Town's inventory was justified and the application of the Town's planning framework meant that the correct and preferable decision was to refuse demolition.
4 The application was accordingly dismissed.
Introduction: the subject land
5 This review concerns the proposed demolition of an attractive 1930s timber-framed bungalow in North Perth. This building formerly belonged to the well-known Perth dairy family, the Brownes.
6 The subject land comprises an existing house (that is, the bungalow mentioned) at 306 Charles Street. The land is formally described as an estate in fee simple in portion of Swan Location 653, namely Lots 98, 99 and 100 on deposited plan 1823, being the land comprised in Certificate of Title Vol 1911 Fol 457. Each lot is 405 square metres in area, and each has a 10.06 metre frontage to Charles Street, and a right of way (ROW) at the rear. The total area of the three lots is 1215 square metres and the bungalow is thus situated over these three separate lots.
7 The bungalow is situated centrally, in a raised position on the site and set back 8 metres from Charles Street with a detached garage to the north of the main house set back 16 metres. There are side setbacks of
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- 7 metres (one containing the garage), with a 14 metre set back from the rear ROW. There is a fall across the property from rear to front of approximately 2 to 3 metres.
8 Mr Thanh Chi Tran and Mrs Phuong Ngoc Tran (applicants) applied to the Tribunal for a review of the decision of the Town of Vincent (respondent) to refuse an application for demolition of the bungalow. (A more detailed history of the proceedings appears immediately below.)
9 The principal ground for refusing the application for demolition is the heritage values ascribed to the subject land. And, as will appear below, the bungalow is endowed with particular features - which will be discussed in considerable detail below - that make it, arguably, relevantly prominent and intact when viewed in its proper historical and heritage context.
Detailed history of the application and proceedings
10 An application for the demolition of the bungalow was made on 8 November 2005 by Mr M Smith, then acting on behalf of Fairlight Pty Ltd. The present applicants were a party to that application, and Mr Smith was a proposed witness in these proceedings. The application was refused by the respondent on 14 February 2006 for the following reasons:
"(a) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality by virtue of the demolition of the existing building; [and]
(b) the existing place has cultural heritage significance in terms of its aesthetic, historic and rarity value."
11 A review of this decision was sought on 17 March 2006 by Ms Klarich, a professional planner, acting on behalf of Mr and Mrs Tran. On 9 May 2006, the respondent listed the bungalow on the Municipal Heritage Inventory (MHI) as a management category property A ("conservation essential"). This is the highest category of protection. (Clause 6 of Policy 3.6.1, discussed below, contemplates that a planning application - including demolition - can, in effect, trigger the entry of a property onto the MHI, as occurred here.)
12 Earlier, on 31 March 2006 the Heritage Council of Western Australia had resolved not to enter the subject land on the State Register of Heritage Places, but encouraged the respondent "to include the place on its
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- reviewed [MHI]" because of its "high degree of local cultural heritage significance": see the letter from that body to the respondent dated 5 April 2006.
13 The matter was heard by the Tribunal, on 4 July 2006, with written closing submissions received from the respondent on 17 July 2006 and from the applicants on 31 July 2006. Draft conditions were exchanged between the parties, in accordance with the practice of the Tribunal. The applicants accepted the substance of the draft conditions.
14 The Tribunal was aided by having a view of the inside of the bungalow, its grounds and the immediate locality in which the bungalow is situated.
15 It is convenient first for the Tribunal to outline the context of the heritage claim.
The "Browne" precinct
16 As has already been mentioned, the bungalow is the former residence of Robert Browne, the eldest son of Edward Browne, the founder of Browne's Dairy.
17 To the east of the subject land, abutting the ROW is 40 Albert Street. This was formerly the residence of Edward Browne and his descendents, including Robert and Walter Browne who became joint managing directors of Brownes Ltd until their respective retirements in the late 1960s. There was an approval for demolition for 40 Albert Street but this approval, we were informed, expired in September 2003.
18 Directly across Charles Street was the site of the former Browne's Dairy factory, which is now a supermarket complex.
19 Thus, the subject land forms part of what may be loosely and informally described as the "Browne" precinct, or more accurately the former "Browne" precinct.
20 Besides referring to these historical and social matters, the Town of Vincent's formal Heritage Assessment (as at the date of the decision under review) described the bungalow as a "single storey partially rendered brick and tile dwelling … [which] is a good example of the Interwar Arts and Crafts Bungalow Style … [and] which was constructed in 1930": see pages 3 and 5 of the Assessment.
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21 The site is at the edge of the Charles Centre Precinct. Development of that area is generally to meet the following criteria set out in the Town of Vincent Policy No. 3.1.7: "The Charles Centre Precinct is to predominantly be reinforced and enhanced as a commercial, light industrial and local retail area, while redevelopment of the balance for residential purposes is to be encouraged". That aim also reflects what is already located in that precinct.
22 Thus, to the north of the bungalow there is a two storey, face brick, commercial premises with strip windows to the south at first floor level and roller shutter garages to the rear ground level. The building is separated from the subject land by angled parking and a private driveway which leads to the public ROW.
23 To the south (300 Charles Street) is an unfinished two storey residential development comprising six multiple dwellings fronting on to Albert Street. The associated car parking will be accessed by a private driveway adjacent to the subject land's southern boundary. The demolition of the existing corner shop at that location and the construction of this multiple dwellings development was approved by the respondent on 14 September 2004. Information provided to the Tribunal in the written closing submission of the respondent confirms, contrary to earlier speculation, that this shop had no direct connection with the Browne family or their dairy business.
24 As will appear from the evidence below, the bungalow presents substantially as it would have in the 1930s, with some minor alterations and changes.
The planning framework
25 It is common ground that this review is governed by the provisions of the Town of Vincent Town Planning Scheme No 1 (TPS 1). The subject land is zoned "Commercial R80" under TPS 1.
26 In particular, the review is governed by Part 3, Division 2 of TPS 1 dealing with places of cultural heritage and by certain related written policies issued by the respondent. The Tribunal has had regard to the following policies:
i) Policy No: 3.1.7 - Charles Centre Precinct Scheme Map 7 (mentioned already).
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- ii) Policy No: 3.6.1 - Heritage Management - Development Guidelines.
iii) Policy No: 3.6.5 - Heritage Management - Adding/Deleting/Amending Places Listed on the Municipal Heritage Inventory [MHI].
iv) Policy No: 3.6.6 - Heritage Management - the Heritage List (Municipal Heritage Inventory [MHI]).
27 See also clauses 38(5)(a), (b), (g) and (h) and cl 41 (dealing with demolitions) of TPS 1. It is also common ground that the bungalow is listed on the MHI within the meaning of cl 23 of TPS 1 (and see s 45 of the Heritage of Western Australia Act 1990 (WA)).
28 In Filton Pty Ltd and Town of Vincent [2006] WASAT 70, at [18]-[19] this Tribunal described the respondent's heritage scheme thus:
"The general objectives of TPS 1 include:
'To promote and safeguard the cultural heritage of the Town by
(i) identifying, conserving and enhancing those places which are of significance to Vincent's cultural heritage;
(ii) encouraging development that is in harmony with the cultural heritage value of an area; and
(iii) promoting public awareness of cultural heritage generally;': cl 6(3)(g).
The legislative mechanism by which the Town identifies a place as one which is of significance to its cultural heritage is by designation of the place on the Heritage List which the Town is required to establish and maintain by cl 23(1) of the Scheme. Clause 23(2) provides that the Heritage List is the Municipal Inventory, as amended from time to time, prepared by the Council pursuant to s 45 of the Heritage of Western Australia Act 1990 (WA). The Heritage List is to comprise 'places considered by the Council to be of heritage significance and worthy of conservation': cl 23(1)."
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29 Of particular note is cl 4(i) of Policy 3.6.1 which provides that the total demolition of a place listed in management category level A of the MHI (which this is: see above) "will normally be refused by [the respondent] except in extraordinary circumstances and where it can be proven that the building is demonstrably unsound".
30 As we understand the applicants' case, none of these policies is sought to be impugned. What the applicants argue is, in effect, that a discretion ought to be applied in their favour and the policy treated as a flexible guideline or, alternatively, it seems that "extraordinary circumstances" exist justifying the exercise of discretion in their favour. What these were, however, was never precisely articulated.
31 Thus, the respondent, and on review this Tribunal standing in the shoes of the decision-maker below, has, paying appropriate regard to any applicable policies of the respondent, a discretion to refuse the application for demolition of the bungalow. Both parties have approached their respective cases on this basis.
Non-heritage issues arising under TPS 1
32 It is necessary to mention several other provisions or interpretations of TPS 1 which arose at various points in the hearing of this matter in the Tribunal. For the sake of convenience the Tribunal will deal with these matters collectively at this point in our reasons.
33 Mr Bain drew attention to two clauses of TPS 1 that were in effect possible alternatives to demolition. Clause 20 of TPS 1 deals with the "Special Application of the Residential Planning Codes". The respondent may, under this clause, grant an increased dwelling density bonus of up to 50% if a non-conforming use is discontinued; or an existing dwelling worthy of retention is conserved or enhanced; or all existing vehicular access is removed from a primary road. If a density bonus is granted, the standards and provisions relating to that higher density in the Residential Design Codes of Western Australia 2002 are to apply.
34 Clause 27 of TPS 1 provides that the respondent may vary any site or development requirements of TPS 1 in order to conserve a place on the Heritage List, as long as affected parties are notified appropriately and their views are taken into consideration prior to the granting of any variation. This clause also provides for the possibility of a heritage agreement with the owner.
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35 Mr Bain for the respondent appeared to argue that these matters were relevant to the exercise of the Tribunal's discretion. It was the applicants' contention that, in any event, due to certain constraints, which included the road widening reserve to Charles Street, the particular location of the bungalow on the site (see above), and the requirement for widening of the ROW, that they would be unable to undertake suitable development on the site while preserving the integrity of the bungalow.
36 In light of the clear conclusions that the Tribunal has reached on the principal heritage issue and demolition it is unnecessary to resolve this hypothetical issue as between the parties.
37 Mr Bain also raised the proper interpretation of cl 41 of TPS 1. That clause appears to provide three courses of action available to the respondent on a demolition application, namely: (1) deferral (linked to subsequent approved development); (2) conditional approval; or (3) refusal. Mr Bain appeared to argue that as no subsequent approved development had been dealt with, and no conditional approval had been given, then only option (3) was available to the decision-maker (and on review this Tribunal) and thus it was "self-executing" or otherwise mandatory in nature.
38 After the hearing, the applicants submitted their written legal advice to the Tribunal which argued that there was a discretion to approve demolition and that the application had been refused leading to a reviewable decision in the Tribunal. We are inclined to agree with that view.
39 Clause 41(c) simply says: "(c) may refuse the application". The whole of cl 41 is linked to the discretionary criteria in cl 38(5). There seems to be no warrant for reading the clause in the mandatory and perhaps narrow way that Mr Bain suggests. Clearly, the respondent had the duty to consider the application and the discretion to refuse it on proper grounds. The Tribunal intends to take the same course.
40 Mr Bain also advanced related arguments to do with the undesirability of having a demolition without a development approval (that is, vacant land). Otherwise, he submitted, there might be a "gap" in the streetscape with no proposals for development which might lead to other consequences under TPS 1, such as affronting notions of orderly and proper planning or resulting in the land being an "unlisted use".
41 We are not persuaded that these arguments have any substance. Upon its proper construction, TPS 1 permits a decision-maker to defer,
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- approve conditionally or refuse a, in effect, self-contained development application for the demolition of a building on land under TPS 1, and heritage matters may be taken into account in this process. Future development is a matter that might be considered under the deferral limb of cl 41. Possibly, it may be considered generally as one discretionary factor, but here it does not arise because refusal is solely based upon heritage grounds.
42 We turn to consider the main evidence.
The expert evidence on heritage matters
43 The applicants called Mr Ronald Bodycoat. Mr Bodycoat is an experienced heritage architect. In reply, the Tribunal heard from the respondent's principal heritage expert Ms Hannah Eames, who is the Senior Heritage Officer for the respondent.
44 Both witnesses agreed that the bungalow had some historical and social value. (This is discussed above in the Tribunal's reasons on the "Browne" precinct.) However, as appears immediately below, there was fundamental disagreement on the issue of the extent of cultural and heritage significance. There was also disagreement between the experts on the related questions of the aesthetic and physical nature of the building.
45 Mr Bodycoat believed that the aesthetic value of the building (that is, the beauty, soundness and fulsomeness of a building: T:15) had been eroded. The site has, in his view, already been compromised by the condition of the building and the substantial changes that had been made to the building. Mr Bodycoat thought that the immediate surroundings (that is, its "context") had altered in that the neighbouring properties no longer echo the original context: see above, under "Browne" Precinct.
46 He was also concerned about the work required to upgrade facilities to modern expectations. Mr Bodycoat said that the physical deterioration of the bungalow was significant. He felt the fabric of the building "require[d] considerable repair to [the] deteriorated materials and finishes".
47 Ms Eames was of the opposite opinion saying that the bungalow was always in a mix of residential and commercial properties, and it still has its original setting on the subject land and in its original geographical precinct location. Ms Eames held to a broader concept of aesthetics, including landmark value, identification of time, location and construction
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- and presentation to the street. She also said that it had "rarity value in the Town of Vincent". While Ms Eames agreed with Mr Bodycoat that there had been some physical changes to the bungalow, she did not believe that these changes were sufficient reason not to preserve the bungalow.
48 Thus, it is apparent that while the two experts agreed substantially on the relevant questions and the essential facts, they disagreed with each other on questions of "degree" as regards overall cultural heritage, significance and preservation value.
Findings on the existing bungalow
49 In the opinion of the Tribunal the existing building is substantially intact.
50 The main alterations appear to be to the rear of the bungalow where the kitchen wall has been removed to provide an open plan dining area and an internal laundry has been incorporated. The bathroom, while upgraded, remains in the original position.
51 Further alterations are the enclosure of both the south and north side verandahs. The south side enclosed verandah houses a number of sewing machines and associated apparatus giving the impression of a small but sophisticated clothing manufacturing operation. With approximately eight to ten machines, this is consistent with the subject site's approved use of light industrial. This area appears to be the old sleep out whereas the enclosed verandah to the north side is a more recent alteration with aluminium framed windows and ceramic floor tiles.
52 The Town of Vincent's formal Heritage Assessment (as at the date of the decision under review) refers to the high degree of authenticity of the place:
"Although some minor internal alterations have occurred to the dwelling, particularly to the service areas of the kitchen, laundry and bathroom, these are not considered to have affected the authenticity of the place, which retains the original floor plan and architectural detailing."
53 Many of the original features of this symmetrically planned bungalow remain. These include: the ornate ceilings in the lounge, dining, hall and main bedroom; the original terrazzo entry steps and section of the verandah leading to the front door; the fretwork above the arch in the hallway; the four sets of French doors opening on to
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- verandahs; the leadlight doors between the lounge and the dining rooms; the dining room fireplace; the windows in the lounge and the main bedroom; the jarrah floorboards to the hall; and the forward projecting portico to the entry (the "aedicular" entry porch). The roof is understood to be composed of the original Marseilles tiles.
54 The street presentation is, in our view, accurately captured in the respondent's nomination for inclusion in the MHI, as follows:
"The single storey dwelling is symmetrical to the front, with a gambrel hipped roof, that features an aedicular entry porch standing through the full width [timber] verandah, which is gently crippled under the main roof. It is supported by pairs of turned timber posts with a flat arched valance and decorative vertical timber balustrade. The clarity of the timber pattern making, set against the plainness of the house and its coolie hat roof, make it an exmplar [sic] of the Interwar Arts and Crafts bungalow style, based on a Federation period bungalow model."
55 In our view there is no doubt that substantial parts of the interiors, and the front exterior present very much as they would have done in the 1930s.
56 With great respect to Mr Bodycoat, Ms Eames' evidence ought to be preferred to his, wherever they were in conflict with one another. This is so if for no other reason than that the heritage values she articulated are consistent with the tenor and aim of the respondent's planning instruments (which are themselves, importantly, based upon modern conceptions of "heritage": see, for example, Boer and Wiffen's Heritage Law in Australia, OUP 2006, Part IV), and are, unsurprisingly, easily demonstrated by, or applicable to, the social and physical context of this particular house and land. In addition, Mr Bodycoat's evidence is largely premised on the "compromised condition" of the building and the substantial changes that had been made to the building, a view that we have made plain we do not share.
57 Despite its intactness, the building is currently in a state of some disrepair and in need of general maintenance, in particular in relation to external fences, gutters, downpipes and paintwork. Mr Bodycoat expressed concern about the work required to maintain the building, referring specifically to the Marseilles tiled roof. So far as the question might be relevant, the Tribunal agrees that this building requires maintenance but that this is not an onerous task, at this stage of its life.
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Conclusion
58 There is nothing in the evidence to suggest that the subject land is other than properly placed upon the MHI. In any event, the heritage importance of the subject land is, in our opinion, independently demonstrated in terms of history, aesthetics, cultural and social heritage values, matters that we have discussed above. In terms of the respondent's policies certain consequences follow for the applicants. This is so notwithstanding that the State heritage body has not sought to enter the subject land in its heritage register. (That this situation is not unusual is clear from the comment in Boer and Wiffen's Heritage Law in Australia, OUP 2006, at 240.)
59 In Bright & Ors and Town of East Fremantle [2003] WATPAT 22, at [33], the former Tribunal spoke of whether a house being considered for demolition "would lead to the elimination of a rare or unique style of architecture or [the] elimination of housing stock which was entirely representative of a given or limited period". In that case, the relevant property was found not to meet that criterion for preservation and was not on any, as it turns out, relevant inventory. Here, of course, the property carries different values from those identified in Bright and is also contained in a municipal heritage list in a scheme quite different from that considered in Bright. But the quote does indicate the scope of permissible heritage values that might be relevant in making a planning decision.
60 Given our findings of both relative intactness and that the property was, in effect, properly placed upon the MHI, and the consequences thereof in terms of the respondent's planning framework, and notwithstanding the dilution of the cultural precinct related to the bungalow and the need for maintenance of the bungalow, the subject site has such values as would justify its retention in terms of TPS 1 and its associated policies.
61 The decision under review should be affirmed.
Orders
62 For these reasons, the orders of the Tribunal are:
1. The application for review is dismissed.
2. The decision under review is affirmed.
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- 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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