Jimboomba Lakes Pty Ltd v Logan City Council & Ors [2014] QPEC 61

(b) That the proposal conflicts with the following sections of the Draft South East Queensland Regional Plan 2005-2026 Amendment 1 Regulatory Provisions:

(i) 2.5(h)(i) as the proposed development is an Urban Activity and the locational requirements or environmental impacts of the proposed material change of use do not necessitate its location outside the Urban Footprint; and

(ii) 2.5(h)(ii) as the proposed development is an Urban Activity and there is not an overriding need for the proposed material change of use in the public interest."

[3] As at the date of lodgement of the development application:

(a) reprint 7E of the Integrated Planning Act 1997 ("the IPA") was in force;

(b) the planning scheme in force was the 1985 Beaudesert Town Planning Scheme ("the Planning Scheme");

(c) the Planning Scheme included the subject land in the Rural Zone;

(d) the South East Queensland Regional Plan 2005-2026 ("the SEQRP") was in force;

(ii) within the "Regional Landscape and Rural Production Area"; and

(f) the relevant version of the regulatory provisions within the SEQRP was known as the "SEQ Regional Plan Draft Amendment 1 -Draft Regulatory Provisions" ("the Draft Regulatory Provisions").

Section 3 of the Draft Regulatory Provisions provided (underlining added):[2]

(1) A material change of use of premises for an urban activity is assessable development requiring impact assessment to the extent the premises are in the -

(a) Regional Landscape and Rural Production Area; or

(2) Subsection (1) does not apply to the extent the -

(a) premises is zoned for an urban purpose under an IPA planning scheme; or

(3) In addition to any relevant matters applying under a planning scheme for assessing and deciding a development application to which subsection (1) applies, the application complies with these regulatory provisions only if -

(a) the activity is minor or local in character; or

(b) for premises in a rural village - the development is consistent with the planning intent for the rural village under the planning scheme; or

(i) the locational requirements or environmental impacts of the development necessitate its location outside the Urban Footprint; and

(ii) there is an overriding need for the development in the public interest."

[4] In order to determine whether the application triggered sub-sections 3(1) and (3) of the Draft Regulatory Provisions, it was ordered that the following questions be determined prior to the hearing of merits:[3]

(1) whether the premises, the subject of the development application, were zoned for an urban purpose under an IPA Planning Scheme; and

(2) whether the development application is for an "urban activity" as defined in South East Queensland Regional Plan 2005-2026 Draft Amendment 1.

The parties were content for me to proceed on the basis that declarations could be made about those matters.

[5] "Urban activity" is defined by Schedule 2 of the Draft Regulatory Provisions as follows:-[4]

(a) means a residential, industrial, retail, commercial, sporting, recreation or community purpose normally found in a city or town; and

(b) includes a tourist facility that does not have a direct connection with the rural, natural or resource value of the surrounding area, including, for example, a general theme park, water slide or go cart track; and

(c) does not include a purpose reasonably associated with a non-urban purpose for which the premises or surrounding area is used, including, for example -

(ii) a mechanical repair workshop for farm machinery or vehicles; or

(iii) vehicle storage associated with transporting rural produce or resources; or

(iv) processing and packaging rural goods predominantly produced on the premises or surrounding local area; or

(ii) any purpose which is associated with a single residential dwelling on an existing lot, including for example

(B) associated dwellings provided that the total number of dwellings does not exceed 4; or

(iv) an extractive industry, including, for example, crushing and screening; or

(x) electricity infrastructure; or

(xi) aquaculture."

[6] The proposed relocatable home park is a residential purpose normally found in a city or town. It is not excluded by reference to sub-paragraphs (c) or (d) of the definition. The appellant rightly conceded that the development application is for an urban activity as defined. The answer to the second question is "yes."

[7] Whilst the development application is for an urban activity, s 3(1) will not apply if s 3(2) is engaged, by reason of the premises being zoned for an urban purpose under an IPA Planning Scheme. The relevant planning scheme is the 1985 Beaudesert Town Planning Scheme. Whilst it pre-dated the IPA, the Planning Scheme was continued in force under that Act as a Transitional Planning Scheme and was, by reason of s 6.1.4 of the IPA, taken to be an IPA Planning Scheme until replaced by, or converted to, an IPA Planning Scheme. It was common ground that it is an IPA Planning Scheme for the purposes of s 3(2). The remaining issue was whether, under that Planning Scheme, the premises were "zoned for an urban purpose."

[8] Schedule 2 of the Draft Regulatory Provisions defined "zoned" as follows:-[5]

"zoned for premises means allocated or identified as a zone or other like term such as domain or area in a planning scheme, including in a strategic plan under a transitional planning scheme."

[9] The terms "premises" was defined, in the IPA[6] to mean:

(b) land (whether or not a building or other structure is situated on the land)".

[10] The requirement for premises to be allocated or identified "as" a zone etc does not mean that it must constitute the totality of the land so zoned. It is sufficient if it is part of the land to which the zone applies.[7]

[11] The expression zoned "for" was considered by Fryberg J in Tolocorp Pty Ltd v Noosa Shire Council & Anor[8] where the Court of Appeal was concerned with whether a proposed subdivision was "for rural residential purposes on land zoned for rural residential purposes." Having analysed the planning scheme, Fryberg J found that the subdivision was not zoned for that purpose. His Honour was in dissent as to that conclusion, but that does not undermine what he said about the meaning of zoned "for," in the context of the same definition of "zoned," as follows (underlining added):[9]

"In my judgment land may be said to be allocated as part of an area for particular purposes if on reading the planning scheme as a whole it appears that the intent of the scheme is to favour the use of the (land or area) for those purposes."

[12] That the expression zoned "for" requires the zoning to favour the use for the relevant purpose sits with the ordinary meanings attributable to the word "for" which include[10] "with the object or purpose," "in favour of," or "on the side of" and "in order to obtain."

[13] The subject Planning Scheme is typical of planning schemes in force prior to the commencement of the IPA. It includes a number of zones and a Table of Zones that identify purposes of development, arranged in columns, comprising, in effect, permitted purposes of development (Columns III A and B), consent purposes (Column IV) and prohibited purposes (Column V).[11] Under the Planning Scheme the subject land was in the Rural Zone which is one of a total of 19 zones into which the Shire was divided.

[14] The Planning Scheme also included a Strategic Plan which indicated Preferred Dominant Land Use designations (PDLU), without conferring use rights. That was the nature of Strategic Plans under the legislation which was superseded by the IPA.[12]

[15] In Tolocorp v Noosa Shire Council & Anor[13] there was a difference of opinion between Mackenzie J[14] and Fryberg J[15] about whether such a PDLU designation could be regarded as a zoning for the purposes of the definition. A PDLU designation would not ordinarily be regarded as a zone in the conventional sense, since it does not confer use rights, but given that the relevant definition expressly extends to the allocation or identification of an area, including in a Strategic Plan under a Transitional Planning Scheme, it is difficult to conclude that a PDLU designation is beyond the scope of the definition.

[16] This case however, does not turn on whether the PDLU designation is a zoning in the relevant sense. The appellant relies upon the provisions of the Rural Zone, rather than on the PDLU designation, in order to engage s 3(2) of the Draft Regulatory Provisions.

[17] The Draft Regulatory Provisions did not define "urban purpose," but Schedule 10 of IPA[16] defined "urban purposes" as follows:

"urban purposes means purposes for which land is used in cities or towns, including residential, industrial, sporting, recreation and commercial purposes, but not including environmental, conservation, rural, natural or wilderness area purposes."

[18] That definition has 3 elements. First, it provides that urban purposes means purposes for which land is used in cities or towns. That would comprehend a very extensive range of purposes. It was submitted, on behalf of the co-respondent,[17] that the definition should be interpreted as if a word such as "only" qualified the word "used," so that the definition singles out those purposes which are intrinsically part of cities or towns, rather than those which can be found both within cities or towns and elsewhere. Accordingly, whilst, for example, a major shopping centre would be caught, a purpose such as a veterinary surgery, examples of which are to be found both within and outside of cities or towns would not. That interpretation however, involves a qualification which does not arise on the literal reading of the definition. Reading this qualification into the definition is not, in my view, justified by a purposive construction.

[19] The definition of "urban purposes" may be contrasted with sub-paragraph (a) of the definition of "urban activity" which refers to certain purposes "normally found in a city or town." As is observed later, the expression zoned for "urban activities" in the preceding version of the Regulatory Provisions was changed to zoned for an "urban purpose" under the Draft Regulatory Provisions.

[20] Secondly, the definition of "urban purposes" specifically includes some purposes for which land is used in cities or towns, namely "residential, industrial, sporting, recreation and commercial purposes." The list is inclusive rather than exclusive. It makes it clear that, for example, a park (recreation) is an urban purpose.

[21] Thirdly, the definition excludes certain purposes at least some of which otherwise might be thought also to be within the purview of the first element of the definition. The exclusions are "environmental, conservation, rural, natural or wilderness area purposes." So, for example, environmental reserves are found within cities or towns, but are not urban purposes.

[22] What is a "rural purpose" for the definition is not determined by reference to the definition in a particular Planning Scheme. The ordinary meaning of rural is "pertaining to, or characteristic of the country or country life."[18] Obvious examples of rural purposes are broadscale agriculture and horticulture. It was submitted, on behalf of the respondent,[19] that the expression is broader than things which are quintessentially rural. It extends, so it was argued, to uses such as veterinary surgeries (one of the as-of-right uses in Column IIIB) where they are located in a rural area, to serve that area, even though they might also be found in cities or towns.

[23] In my view, a rural purpose is one which is rural in its nature. There will be uses for different purposes which, depending upon the context, may operate in a way which is associated with, or supportive of the use of land for a rural purpose, but that does not, in my view, render such uses as being for a rural purpose. In this regard, the definition of "urban purposes" may be contrasted with the definition of "urban activities." The latter includes a tourist facility "that does not have a direct connection with the rural, natural or resource value of the surrounding area". It also expressly excludes "a purpose reasonably associated with a non-urban purpose for which the premises or surrounding area is used." The definition of "urban purposes" does not contain a similar exclusion. I do not consider that the exclusion of "rural" purposes should be read so broadly as to encompass such an exclusion.

[24] I also note that s 3(4) provides for what is "minor or local in character," for the purposes of s 3(3)(a), by reference to, amongst other things, an activity that has a "direct connection with the rural, natural or resource value of the surrounding area" and an activity that "predominantly caters for a local demand generated outside the Urban Footprint or rural village." The meaning of "rural purposes" in the definition of "urban purposes" is not extended by similar words.

[25] Further, as is observed later, the relevant Planning Scheme confers the right to use premises in the Rural Zone for purposes which are neither quintessentially rural nor required to serve a function which is, or is associated with, a rural function.

[26] In determining whether the subject premises were zoned for an urban purpose, Senior Counsel for the appellant pointed to the provisions of the Rural Zone and, in particular, to the Table of Zones. It was submitted that the proposed relocatable home park is both an urban purpose and a consent purpose in the zone and:

"22. Premises are zoned for an urban purpose if the zoning provides for development for an urban purpose. An urban purpose need not be the sole or predominant purpose for which the premises are zoned. Nor does the concept of "zoned for an urban purpose" involve any classification of zones as urban zones or non-urban zones.

1. The zoning of the subject land allows the material change of use applied for to be undertaken if the Council consents to it. The land is therefore zoned for an urban purpose."

[27] Leaving to one side the contention by the respondent that the proposal is a multiple dwelling and, consequently, a Column V prohibited purpose (a question which does not need to be resolved for present purposes), a difficulty with the above submission is that it proceeds on the basis that it is sufficient if the zone allows for an application to be made for permission to use the premises for an urban purpose. The fact that a purpose is in Column IV does not, of itself, mean that it is favoured by the Planning Scheme, so that it could be said that the premises are zoned for that purpose. It means that there is a possibility of an approval being granted for that purpose.

[28] There might be some situations in which a Table of Zones, read in the context of other provisions of a Planning Scheme (such as the statement of intent for the zone and/or Strategic Plan) indicates that a purpose of development is favoured, even though it is a consent purpose (Column IV) rather than a permitted purpose (Column III). For that reason I respectfully agree with Fryberg J that an approach which necessarily confines the identification of purposes for which premises are zoned to those which appear in Column III is "unnecessarily narrow."[20] In this case however, a review of other provisions of the Planning Scheme, including the Intent of the Zone and the Strategic Plan, whilst contemplating other than rural purposes of development in the zone, does not offer any support for the specific purpose here proposed, such that it could be said to be a purpose favoured by the Planning Scheme or zoned for that purpose. For the reasons which follow, it is unnecessary to consider the Column IV purposes further.

[29] The above argument is the one which the respondent and co-respondent came to the hearing to meet. Upon the hearing however, it was pointed out, on behalf of the appellant, that the Table of Zones for the Rural Zone confers the right[21] to use land so zoned for other purposes of a kind which are found in cities or towns and does so by conferring as-of-right entitlements.[22] The Planning Scheme favours development for those purposes within the zone, such that the premises are rightly regarded as zoned for each of them.

[30] It was pointed out that the "urban purpose" for which the premises must be zoned to attract s 3(2) of the Draft Regulatory Provisions is not necessarily the purpose for which approval is sought in the development application. The question therefore, is not whether the premises were zoned for the urban purpose for which approval is sought, but rather whether they were zoned for "an" urban purpose. It was submitted on behalf of the appellant that, even leaving the Column IV purposes to one side, it is clear that the premises are "zoned for" a range of urban purposes, although any one would be sufficient to engage s 3(2) of the Draft Regulatory Provisions on the appellant's approach. It matters not that the premises are also "zoned for" other purposes, including rural purposes.

[31] Senior Counsel for the co-respondent initially acknowledged that one will find at least one purpose in each of Columns III and IV which may be regarded as an urban purpose.[23] Later however, in response to a question, he made the submission[24] that there is not an urban purpose to be found in Column III. That submission was on the basis that "purposes for which land is used in cities or towns" for the purposes of the definition of "urban purposes" should be read as if it included the qualification "only." I have already rejected that.

[32] I have also already referred to the argument that a purpose for which land is used in cities and towns can be a rural purpose where it is located in a rural area. Even if that were correct, it is difficult to see that applying to all of the purposes, or at least all examples of development for those purposes, for which as-of-right entitlements were conferred under the Table of Zones. The as-of-right purposes include, for example, extractive industries (where carried out by the Council), heavy vehicle storage, minor public utilities, public utilities and wholesale plant nurseries. Whilst the Statement of Intent for the zone states that "uses in the zone should be compatible with primary industry activities," uses which are "compatible" are not limited to uses for a rural purpose and I was not directed to any provision, in the Planning Scheme, to demonstrate that development for purposes such as the examples just given, where located in the Rural Zone, are required to be carried out in connection with, to be supportive of, or reasonably associated with, rural purposes.[25]

[33] It was submitted, on behalf of the co-respondent[26] that the construction for which the appellant contends:

"...whilst possibly able to be accepted, at least, in a tentative way if one is looking, myopically, at the particular words of s 3(2)(a)... the position evaporates when one looks at the context and the policy and objectives with which this provision is intended to implement, and, indeed, to advance."

[34] In particular, it was submitted that, not only was it wrong to approach the expression zoned "for" as if it were intended to include purposes merely contemplated as a possibility (a criticism which, for the reasons given, I have already accepted in relation to Column IV uses), but also that a purposive approach to construction leads to the conclusion that it is wrong to approach the expression "zoned for an urban purpose" as if it meant zoned for any one or more urban purposes. That planning schemes generally, including the subject Planning Scheme, usually provide for a multiplicity of individual and differing purposes within most zones tends against the latter submission.

[35] It was submitted that a purposive approach to interpretation requires the expression to be approached on the basis of determining whether the relevant zoning, considered in the context of the scheme as a whole, is for an urban purpose or not. The question, it was submitted, does not admit of the possibility that the relevant premises will be "zoned for" a range of purposes. It must be "for" one.[27]

[36] On the approach contended for by the co-respondent, the question of whether premises are zoned for an urban purpose is not to be determined by asking whether the zoning favours the development of the premises for one or more urban purposes (in addition to any other purposes),[28] but rather is to be determined in a "holistic way,"[29] considering the zoning in which the premises are located "globally"[30] to characterise the zone as for an urban purpose or not. This, it was submitted, involves an evaluative exercise to determine the primary, predominant, overall, overarching or main purpose of the zoning.[31] Senior Counsel embraced my summary of the suggested approach as asking, in a "generic sense,"[32] whether the zone would be described as being an urban zone. That involves a somewhat ambulatory and impressionistic exercise.

(ii) the Statement of Intent for the Rural zone, which describes the purpose of the zone as being to provide for and protect the Shire's prime agricultural land, cater for other rural activities and provide for other privately-owned land in the Shire, where the predominate lot size is greater than about 10ha. It is also said that uses in the zone should be generally compatible with primary industry activities;

(iii) a review of the Columns in the Table of Zones to determine the extent to which the use rights were given for rural and for other purposes;

(iv) the Statements of Intent for other zones, particularly those which are mainly directed to urban purposes;

(v) the inclusion of the land in the "Rural Areas" preferred Dominant Land Use designation (PDLU) in the Strategic Plan;

(vi) the Statement of Intent for the Rural Areas PDLU, which speaks of such areas comprising those parts of the Shire which are intended to be used primarily for productive rural purposes;

(vii) the contrasting Statements of Intent for other PDLU's.

It may be accepted that an examination of those provisions leads to the conclusion that the Rural Zone is mainly directed towards facilitating development for rural purposes, although other purposes are also contemplated.

[38] This approach is similar to construing the phrase as if it contained an unexpressed qualification, such as "predominantly" zoned for an urban purpose. The word "predominantly" was of relevance in Tolocorp v Noosa Shire Council,[33] but that was because the relevant purpose there under consideration was "Rural Residential purpose," which was defined to mean (underlining added):

"a purpose that is predominantly a residential purpose involving a single dwelling on a lot greater than 2000m2."

[39] As Fryberg J observed in Tolocorp (underlining added):[34]

"The unexpanded expression is 'land zoned for rural residential purposes'. As a matter of grammar the phrase 'for rural residential purposes' modifies 'zoned'; and 'zoned' qualifies 'land'. Mr Gore's submission is correct. The question is not whether rural residential purposes are favoured as the predominant purposes of the zone or other area into which the land is allocated. It is whether the land the subject of the development application is favoured for use for predominantly residential purposes."

"Finally, there is some difficulty, in my view, with the notion that what has to be done is to identify what is the predominant use in a particular zone. That is a different question from whether, in this case, the land is zoned for predominantly a residential purpose. It is difficult to see why land may not be zoned predominantly for a particular purpose even if it is not the only purpose or use for which it is zoned."

[41] Adopting a similar approach, in the context of the definition of "urban purposes" (which does not refer to "predominantly") the question is not whether urban purposes are favoured as the predominant purposes of development in the zone. It is whether the subject land is favoured for use for an urban purpose (or purposes) which, on the approach I have taken to this point, it is. It was submitted, on behalf of the co-respondent however, that its approach is justified on a purposive approach, having regard to the intent of the Regional Plan and the Draft Regulatory Provisions.

[42] The relevant version of the South East Queensland Regional Plan (SEQRP) included a Regional Land Use Pattern, the purpose of which was to define "the spatial framework for the region to achieve the desired regional outcomes." It identified regional land use categories, which were:

• Regional Landscape and Rural Production Area (RLRPA)

[43] The land covered by the SEQRP includes a number of local government areas. The majority of the land the subject of the SEQRP, including the majority of the land in the former Beaudesert Shire, was included in the RLRPA.

[44] The stated intent for the RLRPA was as follows:[36]

The Regional Landscape and Rural Production Area identifies lands that have regional landscape, rural production or other non-urban values and protects these areas from encroachment by inappropriate development, particularly urban or rural residential development."

[45] That contrasts with the following intent for the Urban Footprint:[37]

"The Urban Footprint identifies land to provide for the region's urban development needs to 2026."

[46] "Key features" of the SEQRP's approach to managing growth include:[38]

• clearly indentifying and protecting RLRPA from inappropriate development, and

• using Regulatory Provisions to prevent development which is not consistent with the intent of the Regional Plan.

[47] The contention that the appellant's approach conflicts with the evident purpose of the provisions emphasised the intention to protect the RLRPA from inappropriate development, including by use of the Regulatory Provisions (and their successor, the Draft Regulatory Provisions). The appellant's approach however, does not seek to deny the intent for the RLRPA or the role of the Draft Regulatory Provisions. The latter creates an exception to the application of s 3(1) and (3). The argument is as to the scope of the exception, rather than a denial of the primary intent.

[48] The existence of an exception or exceptions is unsurprising; indeed s 3(2) is not the only one. It is an exception only to the operation of s 3(1) and (3). By reason of section 1 the Draft Regulatory Provisions do not apply at all[39] to the following:

"(a) development carried out under a development approval for a development application that was properly made before 27 October 2004; or

(b) development that is exempt from assessment against a planning scheme under the Integrated Planning Act 1997 (IPA), schedule 9; or

(c) development that is generally in accordance with a current rezoning approval given under the Local Government (Planning and Environment) Act 1990 (repealed), section 4.5(6), 4.8(6), 4.10(6) or 8.10(9A); or

(d) development that is generally in accordance with a current rezoning approval given under the Local Government Act 1936 (repealed), section 33(5)(k), to which section 33(5)(m) also applied; or

(e) development that is not residential development and is:

(i) a significant project or located in a State development area; and

(ii) confirmed in writing by the regional planning Minister to be exempt from these regulatory provisions."

[49] As Senior Counsel for the appellant pointed out, there is a danger of focussing on the general intent for the RLRPA and Draft Regulatory Provisions to the point of distraction from the terms chosen to provide the exception to the application of s 3(1) and (3). Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances, which is determinative.[40]

[50] The respondents sought to advance their contention about the correct construction on a purposive approach, by reference to the extent of land which would, on the appellant's approach, be "zoned for an urban purpose." It was pointed out that this would be all land included in the Rural Zone under the subject Planning Scheme, which was, in turn, the majority of land within the Planning Scheme area which was subject to the RLRPA designation in the SEQRP.[41]

[51] There are two things to note about that. First, the SEQRP and the RLRPA did not apply just to the former shire of Beaudesert, but covered many local government areas. The material did not establish the extent to which the appellant's approach would lead to a similarly extensive application of s 3(2) of the Draft Regulatory Provisions throughout the much broader area of the RLRPA under the SEQRP.

[52] Secondly, as Senior Counsel for the appellant pointed out, the Draft Regulatory Provisions expanded the scope of the exception in s 3(2) from that under the preceding regulatory provisions. The previous version was as follows:[42]

"(2) Subsection (1) does not apply to premises zoned for urban activities under a planning scheme in the following -

(b) the Mt Lindesay/North Beaudesert Study Area."

[53] The changes introduced by the Draft Regulatory Provisions:

(i) adopted the expression zoned for an "urban purpose" rather than for "urban activities" which, as has been observed, is a different term with a different meaning in material respects; and

(ii) removed the limitation on the location of the premises to which the exception could apply.

[54] The construction for which the respondents contend would obviously provide greater scope for the operation of s 3(1) and (3) of the Draft Regulatory Provisions and thereby give those provisions more work to do in supporting the intent for the RLRPA. It might be thought that that is a more desirable planning outcome, but the extent to which the considerations underlying that intent are given sway over the considerations which underlie the provision for an exception (in s 3(2)) is a policy decision resolved in the statutory instrument by the words which have been chosen. I am ultimately unpersuaded that the purposive approach to interpretation justifies, less still requires, in this case, the construction contended for by the respondent and co-respondent.

[1] affidavit of Milne Ex A-19 page 224.

[3] Order of Jones DCJ of 20 February 2014.

[6] see Sch 10 - IPA applied by reason of s 37 of the Statutory Instruments Act.

[7] Tolocorp Pty Ltd v Noosa Shire Council & Anor (2007) 150 LGERA 303 per Fryberg J at 321.

[10] Macquarie Dictionary and the Shorter Oxford English Dictionary.

[12] see Local Government (Planning and Environment) Act 1990 s 2.4 and, prior to that, Local Government Act 1936 s 33.

[16] The argument correctly proceeded on the basis that this applied by virtue of s 37 of the Statutory Instruments Act.

[20] Tolocorp Pty Ltd v Noosa Shire Council (supra) at 324.

[21] Either without the need for conditions to be set (Column IIIA) or subject to the notification of conditions only (Column IIIB).

[25] cf private airstrip which is expressly qualified by the words "only where the use is carried out in combination with the use of agriculture or animal husbandry.

[28] having regard also to inclusions and exclusions.

[40] see Alcan (NT) v Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 48 citing Gleeson CJ in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at 143.

[41] see Exhibit 3 and page 5 of Exhibit DMSI to the affidavit of David Michael Skerrett.