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Site name on PCN not matching contract site name provided for POPLA appeal
hi3rophant
post Sun, 16 Sep 2018 - 19:13
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Hi
I appealed a private land PCN to POPLA (using info I found on this forum and I want to thank you for that) and noticed that the site name on the PCN does not match the site name in the contract provided as evidence by the issuing parking company. Do you think this is a strong enough argument to have my PCN cancelled by POPLA?
PARKING CHARGE NOTICE Site Name: Skyline & Causeway Place
Contract Site name: Skyline (The definition of the land on which *** will conduct Parking controls and issue PCN's)
Thank you
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post Sun, 16 Sep 2018 - 19:13
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Redivi
post Sun, 16 Sep 2018 - 19:33
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I would say that there's next to no chance that POPLA would allow an appeal for this reason

They turned down one of my appeals even though I showed that the operator had provided photographs of the entry sign and a map for a car park with a completely different name two miles away from where the vehicle was parked

They then played the "assessor's decision is final" card when I complained
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Churchmouse
post Sun, 16 Sep 2018 - 20:50
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Any ambiguity only needs to be resolved by the "more likely than not" standard, so the "Skyline" vs "Skyline & Causeway Place" discrepancy doesn't seem to be a strong one anyway. But if you've already submitted your appeal, you cannot make additional arguments later.

--Churchmouse
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hi3rophant
post Mon, 17 Sep 2018 - 18:38
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I submitted the appeal. A few days ago I got an email from POPLA with the parking company response and requested evidence. I will post both. I have one more day to add my comments to POPLA regarding the operator’s evidence.

Dear POPLA Adjudicator,

I am writing to appeal Parking Charge Notice Number OPS107336 (Vehicle: VO56YFX)

I am the registered keeper of the above vehicle and have received the above demand from One Parking Solution Ltd.
My appeal to One Parking Solution Ltd. was rejected and they gave me POPLA code 4982228027.
I submit the points below to show that I am not liable for the parking charge:

1. 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
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. No legitimate interest in enforcing a charge – (Parking Eye v Beavis Case not relevant).

1. 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

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. They 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.''

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. 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.''

''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.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole elsewhere in the site 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 magnifying glass to be able to read the terms.

Yet the car was not even shown by One Parking Solution Ltd. to be parked anywhere near any terms at all.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of authorised, permit displaying 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, right next to every visitors parking area stating the maximum parking period allowed for visitors.

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 One Parking Solution Ltd. 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.

2. 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' setting out details including exemptions - such as any 'genuine resident' or any 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do.

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 for visitor permit holders 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

3. No legitimate interest in enforcing a charge – (ParkingEye v Beavis Case is not relevant to this appeal)

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from the ParkingEye v Beavis case. With regards to the location and type of the car park and the interests of the operator, there is no comparison with the Beavis decision. The legitimate interest lies with the tenant of the flat to which a parking bay is allocated and as stated this vehicle was fully permitted by them to park there. As the parking bay is already paid for, no loss has been incurred by One Parking Solution Ltd. nor do any of the commercial justifications judged to be present in that case apply here.
The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in paragraph 97 of the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;
b. The desirability of that parking being free so as to attract customers;
c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to off-park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge remains a penalty. The vehicle was fully entitled to be parked as it was (the parking bay is already paid for in the monthly rent).

The Operator has no legitimate interest in enforcing this charge; their only interest is to intimidate genuine residents into paying their speculative invoices – for parking in a bay they have already paid for and have every right to park in. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“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 the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation, it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in the flat’s own allocated bay where it has every entitlement to.

Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest.

With regards to the findings of the ParkingEye v Beavis case regarding signage and its application to this case, the sum of £100 is not communicated to drivers clearly and unambiguously. Therefore, it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver is unable to read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

The Beavis case depended upon clear, prominent and unambiguous signage and equally, a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only. It may be useful to refer to but it cannot be used to strike out the majority of private parking ticket appeals. The signs provided do not clearly state the amount that will be charged to motorists that do not comply with the terms and conditions of parking at the location. The signage in place at the location is not “conspicuous” or “legible” as required under the BPA Code of Practice. It therefore does not meet the standards outlined by the Supreme Court in that the “wording of the notices” is not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

This concludes my POPLA appeal.

Yours sincerely,


And this is their answer

The appellant entered into a contractual agreement upon parking on site. The terms are laid out on the signage on site including at the entrance and state that parking is permitted for vehicles displaying a valid permit clearly in the front windscreen and/or pre-authorised vehicles parked wholly within their allocated parking space. By parking or remaining on site otherwise than in accordance with the above the driver agrees to pay a parking charge. The driver made use of the facilities and went about their business.
At the time of the contravention the appellant was not displaying a valid permit clearly, making it impossible for the officer to determine if the parking permit is valid and or if the vehicle is authorised. The Vehicle did not have pre-authorisation to park their vehicle in the car park as they were not on the exemption list and therefore agreed to pay a parking charge.
Contravention photos 2 & 7 show the permit on the dashboard but unfortunately, it cannot be determined if the permit is for the site and zone the vehicle is parked in, as that information on the permit is obscured by the black glass at the bottom of the windscreen.
An example of the permit instructions is included. The instructions state “2. Peel off the shaded area to expose adhesive holder around circular permit. 3. Attach permit to windscreen using adhesive holder.” If the Appellant had followed these instructions the permit would have remained fully visible to the patrol officer.
In the appeal to One Parking Solution Ltd, the Appellant acknowledges that the permit was not fully and clearly displayed, they also acknowledge that the patrol officer could not determine whether or not the permit was valid.
The signs on site clearly state that for all permits and all zones parking is permitted for “vehicles fully and clearly displaying a valid … parking permit in the front windscreen…”
As a resident of site, the Appellant should be fully aware of the terms and conditions of parking on the site.
The Appellant states that there is insufficient signage on the site. Site photos are included and demonstrate that in fact there are many signs throughout the site.
It is the driver’s responsibility to ensure they are parked in accordance with the terms. If they are unable to do so they should either, make alternative parking arrangements or otherwise agree to pay a parking charge. If the driver is unsure, our number is on the boards and the signs are BPA approved.
The Appellant states that they are the registered keeper of the vehicle. In the appeal to One Parking Solution Ltd the Appellant declared themselves to be the driver of the vehicle. Not seeking keeper liability as the appellant is clearly the driver.


Should I bother adding comments?
Any suggestions are welcome.
Thank you
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ostell
post Mon, 17 Sep 2018 - 21:24
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The first error is th statement that "the appellant entered into a contractual agreement". You are the keeper and therefore you could not enter into an agreement.

Yet again it says the appellant was not displaying a permit. This again is incorrect as the keeper is the apelant.
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nosferatu1001
post Tue, 18 Sep 2018 - 07:26
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If you dont add comments you are accepting wha thtey say
You have 2000 CHARACTERS to respond with
So BULLET POINTS ONLY
Do they include site info? Do they include copy of your appeal where you state you are the driver, if you in fact did so? Because if you DID say you were the driver, then of course POFA is utterly useless to you.
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hi3rophant
post Tue, 18 Sep 2018 - 12:13
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They included a copy of the contract with the landowner and photos of the site. Also a copy of my first appeal made towards the operator. In the copy there's a note saying that driver was the selected choice. I must have chosen that prior to submitting the appeal.
What are my odds?
Thanks
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ostell
post Tue, 18 Sep 2018 - 12:29
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You state that their website reverted to its default of "the driver" from "other" after you made changes to other parts of the page. You are the keeper.
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nosferatu1001
post Tue, 18 Sep 2018 - 12:34
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Absolutely, you point out that an implicit choice of "drivert" proves nothing other than that the Keeper did not spot the operators sneaky choice of default.
You appealed as keeper, this was clear from the appela - presuming it was. FGiven we havent seen it.
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hi3rophant
post Tue, 18 Sep 2018 - 13:18
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This is my initial appeal.
I'll post a readable version after I get home.

This post has been edited by hi3rophant: Tue, 18 Sep 2018 - 17:10
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nosferatu1001
post Tue, 18 Sep 2018 - 13:24
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Remove that
YOu left every important detail on
Luckily, its VERY low resolution, so its hard to read.
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hi3rophant
post Tue, 18 Sep 2018 - 17:16
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This is the original appeal letter.

Dear Sir/Madam,
I am writing to appeal the above Parking Charge Notice.
On 21/07/2018 at 18:26 my vehicle VO56YFX was issued with a Parking Charge Notice.
Enclosed is a copy of the resident parking permit that clearly proves that my vehicle was authorised to be parked in the resident parking bay. Your records should also confirm that and that the permit was valid when the officer inspected my vehicle. Unfortunately when Attendant 7051 inspected my vehicle the permit had somehow fluttered from where it had been clearly displayed. I accept that your officer was not aware at the time that the owner of the vehicle possessed a valid permit.
However, now that the permit has been presented for inspection it is clear that my vehicle was entitled to be parked in the resident bay.
The only remaining issue is whether the fact that the permit was not fully and clearly displayed at the time of inspection warrants One Parking Solution taking a hard line and upholding the parking charge. I believe that for One Parking Solution to take such a stance would be contrary to the advice of the DfT and the Secretary of State.
Paragraph 85 from the Secretary of State’s Statutory Guidance to Local Authorities advises;

85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE process. It can do this even when an undoubted
contravention has occurred if the authority deems it to be appropriate in the
circumstances of the case. Under general principles of public law, authorities
have a duty to act fairly and proportionately and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest
As a valid permit has been presented for inspection it is clear to any reasonable person that it would not be in the public interest to penalise a person who possessed a valid permit and did nothing to the detriment of the public interest. I cannot think of a more appropriate situation where paragraph 85 applies than this.
I therefore politely request that One Parking Solution act fairly and proportionately in this matter and exercise their discretion sensibly and reasonably by cancelling this parking charge
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hi3rophant
post Tue, 18 Sep 2018 - 20:26
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I’m about to submit the next comments. I have till midnight.
What should I change?
Thank you

I never stated that I am the driver. The operator’s website must have reverted to its default of DRIVER from KEEPER after I made changes to other parts of the page. An implicit choice of "driver" proves nothing other than that the Keeper did not spot the operators sneaky choice of default.
The operator failed to provide evidence that shows how the entrance signs appear from a driver's seat.
The signage is inadequate to form a valid contract between OPS and the driver. The signs in the car park are impossible to read from a moving car in order to form a contract BEFORE the car is parked. I, the registered keeper, have no contract with OPS with regards to this particular parking event.
OPS has no authority to form contracts with drivers or pursue parking charges. Under the Protection of Freedoms Act 2012 (Schedule 4) and Section 7 of the BPA COP, OPS must have written authorization from the landowner in order to pursue parking charges. This authorization must set out several points, including the definition of the land on which OPS may operate.The site name on the PCN does not match the site name in the contract provided as evidence by OPS. The contract provided is for a completely different car park. OPS has no authority in Causeway Place car park according to the definition of the land on which OPS will conduct parking controls and issue PCN’s.
Insufficient evidence that alleged parking terms were breached. The photographs provided are low-resolution and blurry. The close-up images show reflections and are made from the worst possible angle which could prevent a permit from being seen in its entirety.
The operator has failed to demonstrate how this parking event has caused them a financial loss that justifies the £100 charge.
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nosferatu1001
post Wed, 19 Sep 2018 - 08:45
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ah
Why oh why did you put in financial loss? They may just hit the BEAVIS button and deny the appeal.
You didnt point out that as you appealed as Keeper POFA MUST still apply. Thats the *result& of the driver selection box.
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