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  • FIRST POST
    • Tizwaz
    • By Tizwaz 10th Apr 19, 7:35 PM
    • 6Posts
    • 4Thanks
    Tizwaz
    POPLA appeal draft - Civil Enforcement Ltd
    • #1
    • 10th Apr 19, 7:35 PM
    POPLA appeal draft - Civil Enforcement Ltd 10th Apr 19 at 7:35 PM
    Hi, as a newbie to this forum I have read the newbie thread and stickies and used the initial appeal template to send to Civil Enforcement Ltd for my first appeal. As expected, this was rejected and I now have a POPLA number.

    Please find my POPLA appeal draft below. As a newbie I've had to take out any links and pics.
    As this is all new to me, any feedback and suggestions for amendments would be very welcome.


    POPLA Ref XXXXXXXXX
    Civil Enforcement Parking Charge Notice no XXXXXXXX

    A notice to keeper was issued on XXXXXXXX and received by me, the registered keeper of XXXXXXX for an alleged contravention of ‘Payment not made in accordance with terms displayed on signage’ at the car park at 2 Athenaeum Road, London, N20 9AE on XXXXXX. My appeal to the operator, Civil Enforcement Ltd, was rejected by letter dated XXXXX. I am writing to you, as the registered keeper, and would be grateful if you would please consider my appeal for the following reasons.

    1) Frustration of contract

    2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    4) No planning permission from the London Borough of Barnet Council for pole-mounted ANPR Cameras and no advertising consent for signage

    5) Unconscionable, punitive 'parking charge' - Beavis is distinguished

    1) Frustration of contract
    The PCN stated the contravention as ‘Payment not made in accordance with terms displayed on signage’ and this contravention is denied.

    An occupant of the car on the night in question made all reasonable efforts to make payment for 3 hours of parking by using the approved payment channel, which would have amply covered the period in question. The arrival of the PCN was the first indication to any of the occupants of the car had that the payment had not gone through correctly.

    In Jolley v Carmel Ltd [2002] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with the contractual terms, should not be penalised for breach.

    The car occupant followed the instructions to pay by phone exactly as shown on the signage in the car park at 2 Athenaeum Road, N20 9AE. They have a phone record that shows that a call was made to the number 0141 404 0000 on XXXXXXX at 18.57 of 2 minutes and 14 seconds duration (see Fig 1).

    This call connected to a fully automated payment service. On telephoning the payment provider and following the automated service, the occupant was asked if the car parked was a different vehicle, the registration of which appeared to be saved against their details on the system. As this was not the case, the occupant of the car chose the option to register new vehicle details with the service, the details of the car in question (VRN XXXXXXX).

    A minute or two after this initial phone call the occupant of the car was called back by an automated system and asked to confirm the vehicle registration number for the car. Having confirmed these details as asked, all the parties in the car reasonably expected that the payment had been made appropriately.


    Fig 1: Screen shot of phone record of call to payment service

    The service made no provision for the printing of a ticket to display, or a receipt so that a driver could check the details in a tangible format at the time of payment. Furthermore, the payment channel did not indicate any failure to make payment and as such the occupants of the car believed the necessary payment had been made.

    This failure of the payment service to accept payment is not the responsibility of the occupants of the car. It is not reasonable in these circumstances for the occupants of the car to assume any more obligations for making the payment.


    2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    No photographic evidence of the terms on signage (or of the car) has been supplied by Civil Enforcement Ltd, either in the postal PCN or in their ‘Response to Representation’ letter, despite having being explicitly requested in my initial appeal on XXXXXXXXXXX and again in a follow-up letter on XXXXXXXXX. Unfortunately, due to the fact that I live over 200 miles from the car park in question I have been unable to return to take pictures in the same dark and unlit conditions as at XXXXX on XXXXXXXXXX, where visibility would have been markedly reduced. However, I have included pictures of the actual car park signage in this section, albeit in bright daylight, for reference.

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    link

    In the Beavis case, the 85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    link

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas, as well as extremely poorly lit. The very small sign at the cark park entrance does not state clearly any tariffs for parking, the only text being legible from the road in daylight being ‘Phone and Pay’ (see Fig 2). Therefore drivers cannot find the prices and terms of parking at the site BEFORE entering the car park and parking. In the dark, as were the conditions at XXXXXX on the XXXXXXXXXXX the sign was not noticeable at all. The occupants of the car struggled to find the entrance to the car park, as it is unlit. They were alerted to its whereabouts only by spotting the height restriction and didn’t notice the sign at the entrance.


    Fig 2: The entrance to the car park at 2 Athenaeum Road, London N20 9AE

    The signs at the site are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge, which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''


    Fig 3: The first of the two signs inside the car park, mounted high on a pole with another large & unrelated sign directly underneath. Unlit at night

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately (see Fig 3 & 4). I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    The letters seem to be no larger than .40 font size going by this guide:

    link

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    link

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    link

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall”.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''


    Fig 4: The second of the two signs inside the car park, mounted high on a
    pole and unlit at night

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms. The signs in the Athenaeum Rd car park are set extremely high up on poles (see Fig 3, 4 & 5). This forces an angle of reading that makes reading the text particularly difficult for wearers of varifocal glasses, where the correct lens for reading smaller type is at the bottom of the lenses. They were also unlit, further compounding this difficulty in the dark conditions of the night of XXXXXXXXXX.


    Fig 5: View showing placement of the two signs within the car park

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    link

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

    3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 The written authorisation must also set out:

    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    d) who has the responsibility for putting up and maintaining signs

    e) the definition of the services provided by each party to the agreement


    4) No planning permission from the London Borough of Barnet Council for pole-mounted ANPR cameras and no advertising consent for signage

    A search in the London Borough of Barnet’s planning database does not show any planning permission for the pole-mounted ANPR cameras for the car park at 2 Athenaeum Road, London N20 0XN, nor does it show any advertising consent for signage exceeding 0.3 m2.

    UK government guidance on advertisement signage requires:

    “If a proposed advertisement does not fall into one of the Classes in Schedule 1
    or Schedule 3 to the Regulations, consent must be applied for and obtained from
    the local planning authority (referred to as express consent in the Regulations).
    Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under.
    It is criminal offence to display an advertisement without consent.”

    This shows that Civil Enforcement Ltd is/has been seeking to enforce Terms &
    Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.

    I request Civil Enforcement Ltd provides evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (XXXXXXX).

    5) Unconscionable, punitive 'parking charge' - Beavis is distinguished

    If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some 2.40 for two hours for the period parked or, at most, 3.60 for the three hours that the occupants of the car thought they had paid for. Had the payment operator taken the payment correctly on the day, at the time that the occupants of the car gave all the requested details using the ‘Pay by Phone’ payment method, there would be no unfair penalty.

    Instead, Civil Enforcement Ltd is operating a punitive, unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A 'parking charge' of 3.60 unexpectedly becomes an extortionate 100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

    Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be 3.60 and there was ample opportunity to fairly collect that sum through the parking operator’s own ‘Pay by Phone’ system on the material day using the information provided by an occupant of the car on that very system.

    The fact that this punitive charge is being demanded of the keeper of the vehicle after a failure of the operator’s own payment system to correctly take payment when given all the details asked, and through no fault of the occupants of the car on the night in question, is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition.

    At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

    And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

    Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

    Even if one is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be 3.60 and no more.

    No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages; otherwise every trader could massage any 5 bill to suddenly become 500.

    In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that 85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just 3.60 and the Claimant is trying to claim damages of 100, no doubt hoping for an assessor who cannot properly interpret the intricacies of the Beavis case.
Page 1
    • KeithP
    • By KeithP 10th Apr 19, 7:43 PM
    • 14,317 Posts
    • 16,303 Thanks
    KeithP
    • #2
    • 10th Apr 19, 7:43 PM
    • #2
    • 10th Apr 19, 7:43 PM
    Hi and welcome.

    This sentence is wrong:
    I am writing to you, as the registered keeper, and would be grateful if you would please consider my appeal for the following reasons.
    It implies that PoPLA is the Registered Keeper.

    Perhaps it should look something like:
    I am the registered keeper of this vehicle, and would be grateful if you would please consider my appeal for the following reasons.
    .
    • Tizwaz
    • By Tizwaz 10th Apr 19, 7:44 PM
    • 6 Posts
    • 4 Thanks
    Tizwaz
    • #3
    • 10th Apr 19, 7:44 PM
    • #3
    • 10th Apr 19, 7:44 PM
    I am also aware that the ebay link:
    ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html
    is not working, but the text quoted from the site is so good I've left it in for now. Any suggestions?

    (not the full link, as I can't post links yet!
    • Coupon-mad
    • By Coupon-mad 12th Apr 19, 12:39 AM
    • 70,385 Posts
    • 82,950 Thanks
    Coupon-mad
    • #4
    • 12th Apr 19, 12:39 AM
    • #4
    • 12th Apr 19, 12:39 AM
    Leave it in, makes no odds, POPLA have seen it sooo many times!

    why have you not got the obvious points about:

    - the non POFA NTK and what's missing from it (e.g. words relating to para 9(2)f of schedule 4 and keeper liability?) and whether it arrived later than day 15.

    - the usual template about the appellant not being shown to be the individual liable.
    Last edited by Coupon-mad; 12-04-2019 at 10:48 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Tizwaz
    • By Tizwaz 12th Apr 19, 6:59 PM
    • 6 Posts
    • 4 Thanks
    Tizwaz
    • #5
    • 12th Apr 19, 6:59 PM
    • #5
    • 12th Apr 19, 6:59 PM
    Thanks for your time Coupon-mad. I really appreciate your help.
    Unfortunately the letter arrived somewhere around day 10 or 11, so within the allowed time.

    At first I thought that the relevant wording relating to para 9(2)f was missing but some time later I found this buried in the small print at the top of back of the PCN in the PAYMENT section of notes.

    "The creditor does not know both name of the driver and the current address for service for the driver. We therefore invite you to pay or appeal the unpaid parking charge; or if you were not the driver of the vehicle, to notify us of the name of the driver and a current address for service for the driver and to pass notice to the driver."

    Does this make it compliant with POFA or not? I wasn't sure. If it isn't I shall add the sections you mention.
    • Coupon-mad
    • By Coupon-mad 12th Apr 19, 10:49 PM
    • 70,385 Posts
    • 82,950 Thanks
    Coupon-mad
    • #6
    • 12th Apr 19, 10:49 PM
    • #6
    • 12th Apr 19, 10:49 PM
    That's not the 9(2)f part though, is it? Read the Schedule - you read the wrong bit.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Tizwaz
    • By Tizwaz 13th Apr 19, 9:34 PM
    • 6 Posts
    • 4 Thanks
    Tizwaz
    • #7
    • 13th Apr 19, 9:34 PM
    • #7
    • 13th Apr 19, 9:34 PM
    Sorry to be dense. Is this the bit you mean?

    "(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;"

    If so I think I now see your point
    ("Finally!" I hear you cry, whilst slapping your forehead in despair
    The PCN doesn't warn me of this. It was a nuance I had failed to spot until now. I'll get on with amending my draft and repost it once it's done.
    Thanks very much for your help so far.
    • Coupon-mad
    • By Coupon-mad 13th Apr 19, 9:43 PM
    • 70,385 Posts
    • 82,950 Thanks
    Coupon-mad
    • #8
    • 13th Apr 19, 9:43 PM
    • #8
    • 13th Apr 19, 9:43 PM
    Great - but are you certain that's not also in that bit on the back?

    I've seen CEL's newer PCNs an they do have it...I was expecting you to say it did.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Tizwaz
    • By Tizwaz 15th Apr 19, 2:50 PM
    • 6 Posts
    • 4 Thanks
    Tizwaz
    • #9
    • 15th Apr 19, 2:50 PM
    • #9
    • 15th Apr 19, 2:50 PM
    Sorry for the long pause. I've been trying to answer you since Saturday but kept getting "Sorry. The administrator has banned your IP address. To contact the administrator click here." Meanwhile, the deadline for the appeal ticks nearer...These things are sent to try us!

    You are right. The relevant wording is there, buried in a section that at first looked as if it only applied to vehicle hire companies. Dammit, it seems like it's all POFA compliant, which is why I left out the two sections you mention.

    Any other suggestions?
    • Coupon-mad
    • By Coupon-mad 15th Apr 19, 5:29 PM
    • 70,385 Posts
    • 82,950 Thanks
    Coupon-mad
    Leave the POPLA appeal as it was, then.

    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Tizwaz
    • By Tizwaz 15th Apr 19, 8:40 PM
    • 6 Posts
    • 4 Thanks
    Tizwaz
    Thanks for your help. Crossing fingers for a good outcome to the appeal.
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