ASA Adjudication on Infinergy Ltd

Ad

A circular for a wind farm had the headline "Thackson's Well Wind Farm. Mythbuster Newsletter 2". Text underneath stated "Blowing away the myths. Giving you the facts about Thackson's Well Wind Farm. This is the second in Infinergy's series of mythbuster newsletters - aiming to dispel some of the mistruths surrounding wind farm energy in general and Thackson's Well Wind Farm in particular". Further text under the heading "Does a wind farm affect house prices?" stated "A 2007 report by the Royal Institute of Chartered Surveyors and Oxford Brookes University found that there was no distinctive correlation between proximity of wind farm developments and the fall in the purchase value of nearby properties. The report also showed that any prices which did appear to temporarily drop around the stage of planning application submission for nearby wind farms, soon rose again and came back in line with comparable properties. The current nationwide decline of the property market makes calculations about the potential impact of wind turbines on property prices particularly difficult, as prices are falling around the UK". Boxed text underneath stated "What the estate agents say. A landowner interested in hosting a wind farm project undertook a survey to investigate the effect on house prices of the operational Burton Wold Wind Farm wind farm [sic] in Burton Latimer, Northants. Three local estate agents were interviewed, two based in Burton Latimer and one in nearby Kettering. All three stated that they had observed no effect on house prices caused by the wind farm ...". Further text with the heading "Council tax" stated "The Davis' [sic] family recently won a council tax reduction at tribunal due to the proximity of their home to the Deeping St Nicholas wind farm, Lincolnshire and associated noise issues. This is attracting a great deal of attention, and is being read by some as supporting claims of reduced property values. The British Wind Energy Association has expressed its disappointment over this ruling and comments: 'The circumstances of the Davis case do not change the known facts. Mrs Davis appealed for revaluation alleging noise nuisance, however two professional acoustic surveys, one by independent consultants Hayes McKenzie on behalf the [sic] wind farm operator, Fenland Wind and the other from the local authority, South Holland District Council have both shown that there is no statutory noise nuisance at the property. BWEA is mystified by the fact that these two pieces of independent, professional, expert evidence were not presented to the Tribunal, however we are certain that had they been, then Mrs Davis' claim would have been dismissed out of hand'. South Kesteven District Council has already indicated that noise levels at Thackson's Well are not problematic. A great deal of the perceived problems of wind development can be avoided through sensitive siting - an approach which Infinergy thoroughly endorses and is demonstrated in the plans for proposed development".

Issue

The complainant challenged whether:

1. the claim "Mrs Davis appealed for revaluation alleging noise nuisance, however two professional acoustic surveys ... have both shown that there is no statutory noise nuisance at the property. BWEA is mystified by the fact that these two pieces of independent, professional, expert evidence were not presented to the Tribunal..." was misleading, because she believed the acoustic surveys were presented to the tribunal, and

2. the advertisers could substantiate the implied claim that wind farms did not have a negative impact on nearby property prices, because the complainant's own house no longer had a market value and could not be sold.

CAP Code (Edition 11)

Response

1. Infinergy Ltd (Infinergy) said the newsletter was prepared by external consultants and that it did not make any direct claim about whether or not expert evidence was presented to the Tribunal. They argued that it simply and accurately repeated a British Wind Energy Association (BWEA) press release on the matter, which had been issued with the benefit of legal scrutiny, and that the statement was clearly shown to be a quotation in the ad.

Infinergy said that two professional acoustic surveys were prepared by Hayes McKenzie (HM), on behalf of the wind farm operator Fenland Wind, and by South Holland District Council (SHDC), in order to test the noise conditions at Mrs Davis' house under controlled conditions. They said they had obtained written confirmation from Fenland Wind that neither it nor SHDC had been approached by the Valuation Tribunal Service (VTS) prior to the hearing. Infinergy argued that, had those reports been submitted, it would have been natural for both organisations to have been approached by the VTS to provide background information on the reports. Infinergy pointed out that neither of the two surveys were referred to specifically in the VTS's Notice of Decision, and they argued that the fact that no reference was made to the acoustic surveys further indicated that the surveys were not provided to the Tribunal. Infinergy provided a copy of the Tribunal's Notice of Decision.

2. Infinergy said the newsletter did not claim that wind farms did not affect house prices. They said the ad simply and accurately reported the findings of the Royal Institute of Chartered Surveyors (RICS) and Oxford Brookes University report from 2007, which they submitted. Infinergy said the RICS report suggested that it was unclear whether wind farms affected house prices, and that such calculations were difficult to make, particularly in the current economic climate. Infinergy said they believed their newsletter was a balanced assessment of the RICS report because it acknowledged that there might be a temporary drop in house prices around the planning stages but that prices rose again thereafter.

Infinergy also submitted a copy of further RICS research, presented at a 2008 rural research conference. They said the researchers, who surveyed a number of previous studies in the area, concluded that there was "no clear relationship between having a view of the wind farm and a reduction in value. Nor was there any evidence to suggest a relationship between distance to the wind farm and house price". Infinergy said the claim in the ad, that "there was no distinctive correlation between proximity of wind farm developments and the fall in purchase value of nearby properties", could also be supported by a 2003 report by the US Renewable Energy Policy Project. They provided a copy of that report, which they said concluded that there was little or no evidence that wind farms sited within a five-mile radius of a property had a negative impact on property value.

Infinergy provided a copy of the estate agents survey referred to in the "What the estate agents say" section of the ad. Infinergy said they were unable to comment on the specific circumstances of the complainant's case, because they were not the developer of the wind farm in that instance and had not themselves conducted any research into the effect of that wind farm on the value of the complainant's property.

Assessment

1. Upheld

The ASA noted Infinergy's response. We also noted that the Tribunal's Notice of Decision stated that "The absence in this notice of decision of a reference to any statement or item of evidence placed before it by the parties should not be construed as being overlooked by the Tribunal", and also referred to a "wealth of evidence" presented by Mrs Davis. We therefore did not consider that it was safe to assume that because the two acoustic surveys were not specifically referred to in the Notice of Decision, they had not been submitted to the Tribunal.

We considered that the terms "professional acoustic survey" and "professional, expert evidence" implied full reports that included detailed data that was measured against set criteria from which conclusions were drawn. We understood that South Holland District Council had carried out an internal and external noise monitoring exercise at the property to which the Tribunal referred. However, we also understood that SHDC had not directly released the findings of their investigation or any of the actual data obtained during that exercise. We understood that a short statement of their findings did exist, but we considered that that did not constitute a "professional acoustic survey" and that therefore the ad had exaggerated the nature of the SHDC documentation.

We understood that the data and conclusions of the Hayes McKenzie report were summarised in part in a presentation given to the Tribunal. However, we were not able to establish without doubt whether or not a full, hard copy of the Hayes McKenzie survey had been put before the Tribunal. Because Infinergy had not been able to provide evidence that demonstrated that the claim about the Hayes McKenzie survey was accurate, and because we considered that the description of the SHDC statement as a "professional acoustic survey" was inaccurate, we concluded that on this point the ad was misleading.

On this point the ad breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

2. Upheld

We noted the reports submitted by Infinergy. We understood that the report by the Renewable Energy Policy Project assessed the relationship between house prices and wind farm developments in the US only, and we considered that it was therefore not suitable to support a claim that was likely to be understood as applying to UK house prices.

We acknowledged that the 2008 RICS research concluded that there was "little evidence to suggest that windfarms reduce house prices". We also noted that the 2007 RICS and Oxford Brookes University report, referred to in the ad, found that "there was a limited linear relationship between house prices and distance" but that any findings should be treated with caution due to the limited scope of the study. We also understood that the authors had stated that their study was inconclusive, and because of that we did not object to the claim made in the ad that the RICS report had found "no distinctive correlation between proximity of wind farm developments and the fall in purchase value of nearby properties".

We noted, however, that that RICS report also referred to an earlier, 2004 RICS survey of estate agents, which showed that 67% of estate agents surveyed "believe that [property value] depreciation starts at the planning stages of a wind farm and lessens with time". We considered that the claim made in the ad, that "the [RICS] report also showed that any prices which did appear to temporarily drop around the stage of planning application submission for nearby wind farms, soon rose again and came back in line with comparable properties", went beyond the report's stated findings to imply not only that any drop in property prices would be quickly recovered, but that the level of recovery would be in line with the value of other similar properties. We considered that that claim had not been fully substantiated, and we therefore concluded that it was misleading.

On this point the ad breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

Action

The ad must not appear again in its current form.

Adjudication of the ASA Council (Non-broadcast)