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PCN issued - lack of signage and a public road
The Potato King
post Wed, 7 Aug 2019 - 13:05
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Hi, a friend of mine has been issued a PCN from Parking Ticketing limited, allegedly for parking on private land without displaying an appropriate permit. We will be appealing in the usual manner following advice on here, but before we do anything I wanted to check a couple of things with the people on here.

The first is poor signage, I went to check the road out myself and found precisely two signs, made of that laminated cardboard like material attached with zip ties with no nearby lighting. These signs cover a small part of the road; please see the attached image. The two white arrows show the locations of the signs and the directions they face, and the red box shows the area my friend parked in. There is no signage anywhere else aside from the two highlighted.



The second is that this, according to the highways website, is a public road maintained by the local authority, and is not private land. I’ve gotten in contact with the council who are investigating as in their own words “this doesn’t sound right at all”.

Now we are going to appeal on the basis that because of the lack of signage it wasn’t possible for her to see any signs or a enter into any agreement based on where she parked, but if it turns out it is indeed a public road and private companies shouldn’t even be operating there, can we get it thrown out on that basis alone?

Thanks for any help folks can offer and if I’m missing any information please let me know.
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The Potato King
post Tue, 20 Aug 2019 - 21:10
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Hi, my friend is asking me to post and double check that the plan is still to ignore the windscreen ticket, wait for them to apply for the keeper details and then appeal as the keeper?

Or are we waiting until the last possible moment, appealing the windscreen ticket but getting some details slightly wrong to mess up the NTK?

This post has been edited by The Potato King: Tue, 20 Aug 2019 - 21:41
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nosferatu1001
post Wed, 21 Aug 2019 - 06:52
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Post 20
Appeal day 26, hope they mess up.
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The Rookie
post Wed, 21 Aug 2019 - 08:19
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Nope

QUOTE (nosferatu1001 @ Mon, 12 Aug 2019 - 11:09) *
I would personally appeal the windscreen so it lands ON DAY 26 (so allow time for post if posting, or appeal online) so that Mario "forgets" to sped £2.50 with the DVLA nad sends out a NtK. Appeal iwth a SMALL, INCONSEQUENTIAL change to the name or address - Greene instead of Green, for example - and see if that changeis carried over into the NtK. IF it is, ASK the DVLA for who accessed your details between X and Y date. If Mario didnt, then NO keeper liability can ever apply.



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The Potato King
post Thu, 29 Aug 2019 - 20:26
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Hi again, please see the first draft of the email we will be sending to them on Saturday - day 26 from when the ticket was issued.


To whom it may concern:

As the registered keeper for [REG] I am appealing your parking invoice (reference [REF]) dated [DATE] on the following grounds:

There is no visible signage on display where the driver parked at the time of the alleged contravention. The only signage around does not cover the area where the driver parked nor can they be seen from the road entering the lay-by or in the area the driver parked. As a result the driver was unable to enter into any form of contract and subsequently unable to have been deemed to have breached any conditions of said contract.

Please see attached figures 1 and 2.

The signage itself is a forbidding sign and does not offer any form of offer to a non permit holder nor does it provide any information on how to obtain a permit. It is therefore impossible to form any kind of contract and parking without a permit is a matter of trespass not a breach of contract. As trespass this is a matter for the landowner to pursue and not Parking Ticketing Ltd.

Please see attached figure 3.

I shall reiterate for the sake of clarify that I am appealing as the registered keeper and will not be naming the driver on this instance.

Should you reject this appeal please provide a unique POPLA code so I can pursue the matter further.

Yours Faithfully
[NAME]


As directed we will include a small “error” in the keepers personal details to see if they go down the DVLA route properly.

Please let me know what I need to change in the letter.
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Redivi
post Thu, 29 Aug 2019 - 22:35
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Looks OK to me
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The Potato King
post Sat, 31 Aug 2019 - 07:06
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Right, much to my dismay I have obtained photos from the PTL website that show that the driver has parked in a completely different area to where said driver told me...right in front of one of the signs.

So I’m going to cut all the stuff about signage out and just go in on it being a forbidding sign, and hope that’s enough.

Should have done this earlier, I don’t get why it’s so hard to remember where you parked a few hours ago.
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The Potato King
post Thu, 5 Sep 2019 - 21:08
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I have an update! The keeper appealed on their website using their provided form, and there was no ambiguity that the keeper was appealing as the keeper and not the driver.

[DATE]
 
Dear Sir/Madam,  
 
Parking Charge Notice Ref: [REFERENCE]     Vehicle registration: [REG NO]
 
Thank you for your letter of appeal against the Parking Charge Notice issued under the terms of Schedule 4 of the Protection of Freedoms Act 2012.
 
If you wish to transfer liability, please contact us within 28 days of the above date. If we don’t hear from you or the driver within 28 days, the appeals department will hear the appeal from yourself as the Keeper of the vehicle and we will assume that you are taking responsibility for the Parking Charge Notice.
 
Should you provide an incorrect address for service, we may pursue the keeper for any Parking Charge amount that remains unpaid.
 
Should you identify someone, who denies they were the driver, we may pursue the keeper for any Parking Charge amount that remains unpaid.
 
 
You can contact us through our website www.ptlappeals.co.uk.
 
 
Yours sincerely
 
Appeals Dept.  
 
Our Privacy Policy can be found online at www.parkingticketing.co.uk
 
Pay On-line:  www.payptl.co.uk Phone Pay: 0844 848 0814


I note they have failed to provide a POPLA code. In addition if the keeper doesn’t respond within their 28 day timescale they would proceed with the appeal outside of 56 days from the ticket being issued. So could this be a simple as running down the clock?

Please advise.
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nosferatu1001
post Fri, 6 Sep 2019 - 09:15
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They've neither accepted nor declined the appeal at this point, hence no POPLA code

Just let them drift past the 56 day deadline for a NtK. Their issue to deal with.
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The Potato King
post Tue, 8 Oct 2019 - 15:10
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Apologies for the lack of updates, but I’ve found out today a reply was sent via email rejecting the appeal and providing a code on 03/10/2019.

Dear Sir/Madam      PCN Ref: [REFERENCE]      Registration: [REG]    POPLA Code: ‪[POPLA CODE]‬
 
Thank you for your letter of appeal against the Parking Charge Notice issued under the terms of Schedule 4 of the Protection of Freedoms Act 2012. 
 
There are Warning Signs situated on the site that state; Warning, Private Property, vehicles in this area must clearly display a valid P.T.L authorised permit in the windscreen. Failure to comply will result in the vehicle being issued with a Parking Charge Notice without any notice given.  Having carefully considered the evidence provided by you and the Warden we have decided to reject your appeal for the reason below.
 
As the vehicle was parked without a valid P.T.L authorised permit in the windscreen, having checked photographs of when the vehicle was issued with the PCN, (you can view the photographic evidence yourself online at www.payptl.co.uk) as clearly stated on the warning signs, the vehicle was issued with a Parking Charge Notice.
 
We have considered your reason for appeal but unfortunately the operative must see clearly a valid permit in the windscreen when inspecting. This may include a location number, vehicle registration number, expiry date, security features. By seeing the permit in the windscreen, the warden can confirm that the vehicle is entitled parking at the location.
 
We are not able to consider mitigating circumstances, that an appellant feels he or she had good reason for breaching the terms of parking is not a reason for which we can allow an appeal.  When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park.  It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking that are clearly displayed on the signs.
 
Supreme Court of the United Kingdom – Landmark court decision
‪On the 4th November 2015 a landmark judgement was handed down in favour of a parking operator who took a motorist to court for non-payment of a parking charge. Further details on the case can be found here - https://www.supremecourt.uk/cases/docs/uksc...80-judgment.pdf ). This case was an important “test case” due to the complex legal arguments used by both sides. As a result, falls outside “The Unfair Terms in Consumer Contracts Regulations 1999” and also falls outside Genuine Pre-Estimate of Loss.‬
 
 
 
The responsibility to observe and obey parking restrictions is yours and as we operated correctly in this  
instance. We are sorry, but we won’t be accepting your appeal on this occasion as the warden acted accordingly to the signage at the location.
 
You have now reached the end of our internal appeals procedure. 
 
Due to above your appeal is refused, you now have the following options:
 
1                    Pay the PCN at the £100 within 28 days of above date. Please note that after this time if you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures which will lead to costs being added to £150 and we may proceed with Court action against you.
 
2                    Make an appeal to POPLA-Independent Appeals Service within 28 days by visiting www.popla.co.uk and completing the appeal form online quoting POPLA appeal reference ‪[POPLA CODE]‬.  If you prefer to complete your appeal in writing, please contact Parking Ticketing Ltd on ‪0333 533 4540‬ to request the POPLA appeal forms.
 
 
3                    If you opt to pay the parking charge you will be unable to appeal to POPLA. 
 
 
We do not enter multiple appeals.
 
 
 
 
 
Yours sincerely
 
 
Appeals Dept.  
 
Our privacy policy can be found online at www.parkingticketing.co.uk.   
 
Pay On-line:  www.payptl.co.uk    Phone Pay: ‪0844 848 0814‬


As noted in the thread before this is outside the 56 day period for an NTK, so I want to check how to proceed. Does the keeper appeal to POPLA and highlight their failure to provide an NTK within the required timeframe as a reason on the appeal? Or respond to PTL reminding them they’re past the period to transfer liability and decline to name the driver and tell them to drop it?

Thanks
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ostell
post Tue, 8 Oct 2019 - 18:26
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Appeal to POPLA so that you cost them money. No NTK will be the main point.
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The Potato King
post Wed, 9 Oct 2019 - 04:33
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QUOTE (ostell @ Tue, 8 Oct 2019 - 19:26) *
Appeal to POPLA so that you cost them money. No NTK will be the main point.


I’ll draw up a draft appeal to post on here to run it by everyone first then. Should we appeal straight away or drag it out toward the end of the 28 days provided from the rejection?
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ostell
post Wed, 9 Oct 2019 - 07:42
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Now that you are past day 56 no point in waiting

Yes post here for critique first
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The Potato King
post Wed, 23 Oct 2019 - 05:37
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Apologies for the delay, been dealing with some personal issues. Below is a first draft cribbed together from various templates and winning examples.

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from Parking Ticketing Ltd on the following points:


1. A compliant Notice to Keeper was never served

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3. Signage is forbidding and does not constitute a contract

4. No evidence of Landowner Authority

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.


This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the keeper throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. Signage is forbidding and does not constitute a contract

The signs used by Parking Ticketing Ltd do not constitute a contract as they are prohibitive and forbidding and do not have the necessary requirements of a contract, offer, acceptance and consideration. See image 1.

The signs are ‘forbidding parking’ as they state that ‘Permit Holders Only’ are allowed to park. If the driver does not have a permit, then they are ‘forbidden’ from parking there which is not an invitation to park and therefore no contact is created. The matter then becomes a case of trespass, for which nominal damages can only be claimed by the landowner (and not PPS) through civil courts. Several recent court cases support the argument being placed:

(1) PCM-UK v Bull et all B4GF26K6 [2016]: residents were parking on access roads. The signage forbade parking and so no contract was in place.

(2) UKPC v Masterson B4GF26K6 [2016]: it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

(3) Horizon Parking v Mr J C5GF17X2 [2016]: it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

Case (3) is very similar to the matter in this appeal, as it pertains to parking in a permit holder only car park. A summary of the judge’s ruling on the forbidding nature of the sign is as follows:

“Judge finds this is a forbidding notice, not an invitation to park on certain terms. It disallows other parking. Could be construed as only applying to permit holders, not others who are forbidden from entering the area. IF this is the case, it only offers to permit holders. This therefore means this is a landowner issue for trespass. The agreement between PPC and landowner does not allow for Horizon to collect for trespass issues. This notice forbids any parking at all except by permit holders and is not an offer at all. Does not make a contractual offer, so they cannot claim against [defendant] for this.”

This ruling clearly states that no contract is offered to anyone who is not a permit holder, which moves the matter to being one of trespass and Parking Ticketing Ltd cannot claim on the grounds of trespass and therefore have no right to issue the driver with a parking charge.

4. No evidence of Landowner Authority

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

Should you require anything me from me please let me know.

Kind regards
[KEEPER NAME]


Please let me know if this is ok and what I need to change.

This post has been edited by The Potato King: Wed, 23 Oct 2019 - 17:36
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nosferatu1001
post Wed, 23 Oct 2019 - 07:31
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Contains an OLD typo:
I am the appellant throughout

Obviously thisis KEEPER, not appellant.
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The Potato King
post Wed, 23 Oct 2019 - 17:36
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I’ve gone back and edited the post, how does it look now?
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nosferatu1001
post Thu, 24 Oct 2019 - 06:37
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Like a really long POPLA appeal.

To be honest - if youve taken the 2019 POPLA apeals from places such as MSE FORUM, youre mostly there. THere is little we can add to them by now.
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The Potato King
post Sat, 26 Oct 2019 - 20:21
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Ok thanks, well I guess there’s nothing more to do than to turn this into a PDF and get it sent off to POPLA.

I’ll post when I have a result from them.
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Umkomaas
post Sat, 26 Oct 2019 - 20:49
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QUOTE (The Potato King @ Sat, 26 Oct 2019 - 21:21) *
Ok thanks, well I guess there’s nothing more to do than to turn this into a PDF and get it sent off to POPLA.

I’ll post when I have a result from them.

Make sure you tick the ‘Reason for Appeal’ (or whatever similar term POPLA has on its appeal portal) - ‘OTHER’.
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nosferatu1001
post Mon, 28 Oct 2019 - 17:02
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Nope, you have the stage where you REBUT ther response.

You must read other threads. Its mentioned in all complete POPLA threads.
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The Potato King
post Tue, 29 Oct 2019 - 13:36
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Success!

Submitted the appeal late afternoon yesterday and got a response this morning stating that PTL do not wish to contest the appeal.

Thank you everyone for your assistance.
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