Background
Summary of Council decision:
Six issues were investigated, four were Upheld and two were Not upheld.
Ad description
A circular for an anti-windfarm group made various claims about a proposed development at Brightenber Hill and encouraged readers to object to the local council about the development.
Issue
The developer, Energiekontor UK Ltd, challenged whether the following claims were misleading:
1. "We are convinced that the proposed development will have little or no contribution to renewable energy production because of unpredictable wind values and the fact that Energiekontor have carried out wind measurement tests which they resolutely fail to make public!";
2. "They [the turbines] are bound to have an adverse effect on tourism";
3. "[The turbines] may well affect property values";
4. "[The turbines] may well present a danger to bats and birds";
5. "The Gledstone/Marton Road which will have to be widened and have its trees felled and its beautiful canopy utterly destroyed"; and
6. "[This] will seriously disrupt all users of these quiet roads be they motorised, bikers, horsey [sic] or pedestrians."
Response
1. Friends of Craven Landscape (FOCL) referred to the website of the British Wind Energy Association (BWEA) and Energiekontor's Brightenber Hill Environmental Impact Assessment, which they believed showed that the predicted wind speed at Brightenber Hill ("the site") was 7% lower than the UK average for onshore wind farms, which would result in a 14% reduction in power output. They said Energiekontor had not released site specific wind data and they provided a calculation of the likely power output of the turbines using information from a turbine manufacturer and an online wind database. They believed that demonstrated that the turbines would be unproductive for more than 30% of the time and that, when they were productive, their output in terms of commercial wind electricity generation would be poor.
2. They referred to a Small Business Council report from February 2006 which drew on several studies into how wind farms affected tourism. They said the report relied on 6,000 interviews and questionnaires carried out in Scotland, Wales, North Devon and Cumbria between 2003 and 2005 and that it showed the percentage of tourists in each area who said they would not return if a wind farm was built there, which ranged from 7% to 15%. They also cited a planning appeal from Argyll in Scotland which they said had been rejected on the grounds of the impact on tourism.
3. They said the wording of the claim was conditional but that there was evidence that turbines had an impact on property prices. They referred to a case heard by the Lincolnshire Valuation Tribunal, where it was decided that a property should be reclassified for Council Tax purposes as a result of the nearby development of a wind farm, and a House of Commons Standard Note that referenced that case.
4. They said there was evidence of the impact turbines had on wildlife, but that the wording of that claim was also conditional. They provided details of the bat roosts in the vicinity of the site, including those identified in Energiekontor's bat survey, and bat traces. They said the bat survey showed high bat activity on the north and east boundaries of the site and moderate activity on the south boundary. They said wind turbines harmed bats in three ways: collision with towers; collision with moving blades; and catastrophic lung injury that occurred when bats became affected by air pressure fluctuations caused by moving turbine blades. They referred to a 2008 study carried out by Calgary University that showed how common lung injury could be. They said Energiekontor's own survey concluded that there were bats onsite and that the turbines would inevitably pose a danger to those bats.
They said the Royal Society for Protection of Birds (RSPB) policy on wind farms included the statements "The available evidence suggests that wind farms can harm birds in three possible ways - disturbance, habitat loss (both direct and/or indirect) and collision" and "If wind farms are located away from major migration routes and important feeding, breeding and roosting areas of those bird species known or suspected to be at risk, it is likely that they will have minimal impacts". They said the use of equivocal terms such as "likely" and "minimal impacts" made it clear that developers could minimise the impact on birds, but not eradicate it.
5. They described the Gledstone/Marton Road and in particular the canopy of interlocking tree branches which they said was prized by local residents. They provided details of the types of vehicles that would need access to the site during the development phase (and their dimensions) and summarised the proposed tree felling, tree pruning and road widening necessary to provide access for those vehicles. They said the canopy would have to be cleared to a minimum height of 5 m and that in some locations it would be cleared to an undisclosed greater height, which would result in an uneven and unnatural patchwork of branches that would take several years to recover, if it ever did. They said this would diminish significantly the recreational experience of all who used the Gledstone/Marton Road.
6. They said the closest traffic survey to the site was from a road more than two kilometres away and that no survey had been done of Gledstone/Marton Road. They said the road was used by general traffic and farm vehicles and that it linked two busy A roads, as well as being popular with walkers, cyclists, equestrians and motorists.
They said construction of the site would see abnormal loads including nacelle transporters, turbine hub transporters and mobile cranes and that Energiekontor's Transport Statement stated that 49 abnormal loads would make the one-way trip into the site along Gledstone/Marton Road, mostly over a three-month period but with as many as three movements in a single day. They said part three of the Transport Statement provided full details of the traffic movements over the six-month construction phase and showed that there would be a total of 1,692 movements, mostly by heavy vehicles that were unsuitable for the road. They said the vehicle movements would cause significant disruption to local and visiting road users and that the road widening and strengthening works required to facilitate vehicle access would add to the disruption.
Assessment
ORIGINAL
1. Not upheld
The ASA noted that the leaflet encouraged local people to send individual letters objecting to the planning application for a development of three wind turbines. Although FOCL were entitled to express their reasons for opposing the development, the CAP Code required them not to imply that their expressions of opinion were objective claims and to ensure that the objective claims that were capable of substantiation did not mislead.
We considered that readers would understand the claim "We are convinced that the proposed development will have little or no contribution to renewable energy production because of unpredictable wind values and the fact that Energiekontor have carried out wind measurement tests which they resolutely fail to make public!" to mean that FOCL had been unable to estimate the site's likely output because the developers had not released the on-site wind measurement results, which had led them to believe that the site would contribute very little to the total renewable energy produced in the UK each year.
We understood that Energiekontor's estimate of the electricity the site could produce was equivalent to that needed to power 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. 0 homes in the Craven area. We understood that FOCL had produced a lower estimate but, while Energiekontor's calculation did not use site specific data, we noted that it had used the appropriate typical load factor for on-shore wind turbines. We considered that, even operating at a load factor below that upon which Energiekontor's estimation was based, the amount of electricity produced by the site could be considered significant in a local context. However, we recognised that the electricity produced by any one wind farm, and particularly one that consisted of only three turbines, would constitute a very small amount of the renewable electricity produced in the UK each year and we considered that it was not possible to objectively assess the significance of the site's contribution to that total. We considered that, in the context of a leaflet produced by a group campaigning against a proposed wind farm, readers would understand that the claim "We are convinced that the proposed development will have little or no contribution to renewable energy production" to be FOCL's opinion and we therefore concluded that it was unlikely to mislead.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising), but did not find it in breach.
2. Upheld
We considered that readers would understand the claim "They [the turbines] are bound to have an adverse effect on tourism" to mean that it was generally accepted that wind farms had a noticeable economic impact on local industries dependent on tourism, and that it was therefore very likely that those industries in the surrounding area would be affected by the development of the site.
We were aware that the Environmental Statement that accompanied the planning application reviewed several studies, including one carried out for the Scottish Government and others produced by the trade body for the UK wind industry. They showed a range of attitudes towards wind farms and demonstrated that the presence of a wind farm would not adversely affect the decision making process of most tourists. Taking into account factors specific to the site, the Environmental Statement acknowledged that landscape was an important tourism resource in the area but concluded that the site would not have a significant effect on local tourism.
Although those who had actually seen a wind farm while on holiday were less likely to respond negatively than those responding to a hypothetical question, the evidence we had seen consistently showed that some tourists did not believe they would return to an area if a wind farm was built. Furthermore, some of the studies predicted the economic impact if those tourists who said they would not return to an area followed through with that commitment. However, the evidence did not demonstrate that wind farms had been shown to have a notable economic impact on tourism. Because of that, and because the Environmental Statement said the site would not have a significant effect, we considered that the claim exaggerated the likely effect on tourism and we concluded that it was likely to mislead.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
3. Upheld
We considered that readers would understand the claim "[The turbines] may well affect property values" to mean that it was not uncommon for wind farms to impact negatively on the price of houses in the vicinity of a wind farm, and that there was therefore a reasonable likelihood that house prices in the area would be affected by the development of the site.
We were aware that there had been individual instances of houses being devalued for Council Tax purposes following the development of a wind farm in close proximity. However, we had not seen evidence that wind farms commonly had a negative impact on the value of surrounding houses. Because of that, we considered that the claim exaggerated the likelihood of the site negatively impacting on local house prices and we concluded that it was likely to mislead.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
4. Upheld
We considered that readers would understand the claim "[The turbines] may well present a danger to bats and birds" to mean that it was not uncommon for wind farms to have a notable negative impact on local bat and bird populations, and that there was therefore a reasonable likelihood that there would be a similar impact on bats and birds in the area around the site.
We accepted that bats and birds could be affected both by habitat loss and by the danger of collision with wind turbines, and we recognised that it was possible some animals, including some high risk bat species that regularly crossed the site in small numbers, might be affected by the site. However, we noted that the bat and bird surveys carried out by Energiekontor as part of the planning process predicted there would be a negligible effect on both bat and bird populations. We therefore considered that the claim exaggerated the likely effect of the site on local bat and bird populations and we concluded that it was likely to mislead.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
5. Not upheld
We considered that readers would understand the claim "The Gledstone/Marton Road which will have to be widened and have its trees felled and its beautiful canopy utterly destroyed" to mean that alterations required to the road and the trees bordering the road would negatively impact on the aesthetic appeal of its tree canopy.
We understood that the road would have to be widened in places and that 13 trees would have to be removed, with a 200 m stretch of trees pruned to allow the turbines to be delivered. We considered that it was not possible to objectively assess the extent to which those actions would impact on the visual appeal of the tree canopy and that readers would understand that the claim it would be "utterly destroyed" was FOCL's opinion. We therefore concluded that the claim was unlikely to mislead.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising), but did not find it in breach.
6. Upheld
We considered that readers would understand the claim "This will seriously disrupt all users of these quiet roads be they motorised, bikers, horsey [sic] or pedestrians", which immediately followed the claim that in order to provide access for the vehicles required to deliver the turbines "[The] Gledstone/Marton Road which will have to be widened and have its trees felled and its beautiful canopy utterly destroyed", to mean that the road widening works would have a very significant impact on all types of road user.
We understood that road access and widening was the first stage of the construction process, which was expected to take six months in total. We had seen the Transport Assessment prepared as part of the planning application which concluded that the impact of site traffic could be mitigated (for example, by implementing a traffic management scheme agreed with the Highways Agency) to ensure it was of only minor significance to the Gledstone/Marton Road. We appreciated that some vehicles would be affected if their journey coincided with the movement of one of the abnormal loads, but we noted that the Traffic Statement had concluded that the abnormal loads could be accommodated and delivered to the site with negligible disruption to local traffic, businesses and residents. Because we had not seen evidence that focused specifically on the impact the road widening works would have on road users, we considered that the claim exaggerated its likely impact and we concluded that it was likely to mislead.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
The ad must not appear again in its current form. We told FOCL to ensure that they held robust evidence for claims that were capable of objective substantiation in future.
