Background
Summary of Council decision:
Seven issues were investigated, all of which were Not upheld.
Ad description
A regional newspaper ad, for a proposed housing development, was headed "What does the future hold for Bridport's St. Michael's Trading Estate?". Beneath that was a drawing of a street, labelled "Is it this?" and two photographs of a rundown area labelled "Or more of this?". Text stated "Tomorrow, a critical decision will be taken over plans for St Michael's trading estate. These plans will provide the estate with a new lease of life, greatly enhance the environment, provide attractive affordable housing, increase employment prospects as well as preserving the unique character of St Michael's. The facts that West Dorset councillors, tenants, members of the public and everyone interested must consider are: The scheme complies with all current local plans and policies ... Employment opportunities will be enhanced ... The form and layout out of the proposed development is fully supported under West Dorset's own planning guidelines established in 2009 ... The response of English Heritage to the plans is inaccurate. The following will be retained: the historic elements of the Lilliput building, ALL of the Red Brick Cafe ... The four buildings planned for replacement are not listed and have been altered so substantially that they are now of very limited historical value".
Issue
The complainant challenged whether:
1. the ad was obviously identifiable as such;
2. the photographs were misleading, because they were not representative of the area;
3. the ad was misleading because it suggested the houses pictured in the drawing would be affordable housing, which the complainant understood was not the case;
4. the claim that the development would preserve the character of St. Michael's was misleading, because this claim was rejected by the relevant planning committee and English Heritage;
5. the claim that the scheme complied with all current local plans and policies was misleading, because the planning committee had stated that it was contrary to policy objectives;
6. the claims that the English Heritage response was inaccurate and that the historic elements of the Lilliput building and all of the Red Brick Cafe would be retained could be substantiated; and
7. the claims that the buildings were of little historical value were misleading, because English Heritage stated that the area as a whole was historically significant.
Response
1. Hayward & Co said they considered the ad to be obviously identifiable as such, having produced the copy and illustrations and placed and paid for it as an "ad".
2. They provided a number of additional photographs that were taken on the site around May 2012 to demonstrate that the photographs they had used in the ad reflected the current appearance of much of the site. They considered the pictures to be typical and they believed that they partly illustrated why they were planning to undertake the development. They said it was part of their proposal that the site was in a poor state both inside many of the buildings and outside, for example, in the shared parking areas. They had seen some images of the site that the complainant believed were more indicative of its character and they said it was clear that they had all been taken in one small area to the west of the site (with some looking towards the east). They said they had been taken on the same day, at the height of summer during a monthly market that took place on Sundays between April and October in 2010 and 2011. They said the number of visitors shown in those images was exceptional and confined to the market days, which had been discontinued for 2012. They believed their pictures were more representative of the site in its entirety for the vast majority of the year.
3. They said the ad stated that the development would provide "attractive affordable housing", which was their intention, and that there would be a "clever mix of affordable and open market housing". They did not believe it suggested that the houses pictured in the drawing would be affordable housing. They said the planning application to which the ad referred was in outline only and that affordable housing provision remained a subject of negotiation with the planning authorities.
4. They said the concept of "character" in planning and building was subjective, both technically and emotionally, especially in areas like the one in which the site was located. Bridport Town Council had considered that the buildings on the site made a positive contribution to the local conservation area and English Heritage had said the South West Quadrant of Bridport (in which the site was located) played an important part in defining the character and appearance of the town. They said they agreed with those views but that the location of the site meant additional applications had to be made for any kind of demolition and the Development Control Committee of West Dorset District Council (WDDC Committee) had approved their outline planning application.
They said numerous negative emotive terms had been used to describe their plans and that it was against that background that they sought to make it clear that the trading estate would continue if the plans went ahead, albeit it on a reduced footprint. They said part of the planning conditions was that a "significant sum" would be set aside as a fund for the maintenance and refurbishment of the buildings that remained and that they stood by their claims that the development "will provide the estate with a new lease of life, greatly enhance the environment and preserve the character of St Michael's".
They maintained that the "character" of the estate was defined more by the variety of local traders and the range of services they provided than by the buildings from which they operated, whether considered to be of some local importance or not. They said the minutes of the WDDC Committee meeting that approved the application did not refer to "character" but to "the loss of locally important buildings ... being justified", and to the fact that "members identified St Michael's Trading Estate as an area in urgent need of investment and overall they regarded this application as an opportunity to improve the area". In preparing the ad they said they were mindful of the balance between preserving buildings and providing useable working space in line with present day standards, which was what had been considered by members of the WDDC Committee.
5. They said the WDDC Committee had not responded to the application at the time the ad was placed but that it had subsequently approved the application, subject to conditions. They said it was unlikely that the WDDC Committee would have considered, let alone approved, an application which did not comply with policy.
They said the West Dorset District Local Plan had (under policy WA6) designated the site for comprehensive mixed use development and that their plans complied with all of those requirements, and with the six key points of the Bridport South West Quadrant Regeneration Framework. They acknowledged that when preparing the ad they made their own judgement that the buildings were not of sufficient historical interest that their demolition would contravene that Framework. The ultimate arbiter was the WDDC Committee (and beyond that the Secretary of State for Communities and Local Government) which subsequently agreed with their judgement, by approving the application.
6. They said there were aspects of the letter from English Heritage dated February 2012 with which they agreed, but that there were aspects they did not agree with and which were inaccurate. They reiterated that it was their objective to preserve and enhance the site where practically and economically possible. They said there was one building on the site that, if left, would become structurally dangerous and that there were already areas where their health and safety advice was that it would be unsafe for work to be carried out there. They said they had offered English Heritage full visibility of their plans and all information provided to the WDDC Committee was publicly available. Their plans for the Lilliput Building had always included retention of all historically significant aspects and their proposal showed that the Red Brick Cafe would be fully retained. They said English Heritage had called for a holistic understanding of the site and they considered that was exactly what they provided, having been the owners of the site for 44 years. They reiterated that the proposal was still at the outline planning stage and that more information would be available as it progressed.
7. They said many buildings on the site were in a poor state of repair and could not be left to decay any longer. The replacement of the Stover Building had twice been accepted by WDDC officers and, although under their proposals the Stover Building and "Tin Sheds" would be demolished along with parts of the Lilliput Building, the architecturally significant remnants of the Lilliput Building would be retained along with the Red Brick Café, the Auction House, the Twine Walk and Store, the Northlight Building, the Old Tar House and the Bridport Industries Building. Neither English Heritage nor the conservation officers from WDDC had suggested when reviewing the proposals that any of the buildings in question were of such significance that they should be considered for either national or local listing. They noted that English Heritage had called for a "historic understanding of the site and its relationship with its context" which would "establish a balance between the retention of as much of the historic significance of the site as possible and trying to secure for the site overall a sustainable and commercially viable future". They felt that was the balance that their proposal, which had been approved by the WDDC Committee, was trying to maintain.
Assessment
1. Not upheld
The ASA noted that the first line of text stated "Tomorrow, a critical decision will be taken over plans for St Michael's trading estate" and that the remainder of the copy set out arguments in favour of those plans. We also noted that the final sentence, written in bold text, stated "Hayward & Co will retain the unique identity of St Michael's and add to the vibrancy and vitality of Bridport". We understood that the ad had been produced in part to respond to negative comments made by objectors to the plans and we considered that readers of the publication were likely to have some knowledge of the issues, which were of local significance. Indeed, we noted that the story on the front page of the publication was about the plans and the upcoming WDDC Committee meeting. We noted that the ad was bordered by a blue box, in a way that editorial content would not ordinarily be, and that there was nothing in the ad to suggest it had been produced by anyone other than the advertisers. We therefore considered that it would have been obvious to readers that the ad had been paid for and written by Hayward & Co. Because we considered that the ad was obviously identifiable as such, we concluded that it did not breach the Code.
On this point, we investigated the ad under CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications), but did not find it in breach.
2. Not upheld
We considered that readers would understand the images of the run-down building and car park were intended to convey that the site was in need of improvement, and that the artist's impression of the site following redevelopment was indicative of what could be achieved. We noted that a part of the site had accommodated a Sunday market throughout the summers of 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.1 2.1 Marketing communications must be obviously identifiable as such. , which appeared from the pictures supplied by the complainant to have been well attended. However, the primary function of the trading estate was to accommodate local businesses and we had seen a number of images which showed buildings in poor condition. We understood that some of the buildings could not be used to their fullest capacity because of health and safety issues and we noted that the WDDC Committee had concluded that the site was in urgent need of investment. We considered that it was fair to say that areas of the site that were in poor order could be improved and, because we considered that was the message conveyed by the photos of the site, we concluded that they were unlikely to mislead.
On this 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
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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) but did not find it in breach.
3. Not upheld
We considered that the artist's impression of what the site would look like if their plans went ahead was intended to represent a well maintained, residential area. We understood that at the time the ad was published the plans were for all of the affordable housing to be flats, but that this was a point under discussion with the planning authority. We noted that the first paragraph said the plans included "attractive affordable housing" and that the final paragraph referred to "a clever mix of affordable and open market housing ...". We considered that there was no implication in the text that all of the proposed housing would be affordable housing and we noted that there was no link made between the references to "affordable housing" and the artist's impression of the developed site. Because the ad did not state or imply that the buildings shown in the artist's impression were intended to be affordable housing, we concluded that it was unlikely to mislead.
On this 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
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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) but did not find it in breach.
4. Not upheld
We noted that the first paragraph of the ad said the plans would give the site "a new lease of life", providing environmental, housing and employment benefits, while preserving "the unique character of St Michael's". We considered that the images that showed the current state of the site and the potential impact of redevelopment, together with the opening paragraph, made it clear that the primary purpose of the plans was to provide economic benefit to the area. The ad went on to list the various local policies to which Hayward & Co believed their plans adhered. We considered that the ad was clearly coming out in favour of the plans and that, upon reading the claim to preserve the character of the area, consumers would expect this to be the view that Hayward & Co had formed based on the information available.
We were aware that the planning officer's recommendation to the WDDC Committee was that the application be refused on a number of grounds, including that "The form of development proposed is at odds with the predominant grain of development in the locality, and fails to take the opportunities available for improving the character and quality of the area and the way it functions". We understood that that view was shared by English Heritage but not by the WDDC Committee, which approved the application against the officer's recommendation. The minutes of the meeting at which that decision was made stated "Notwithstanding officers' concerns, Members concluded that the form of the proposal respected the predominant grain of development in the locality".
We recognised that the likely impact of the proposed development on the character of the area was a point upon which opinions were likely to differ, as had been demonstrated by the WDDC's decision to approve the proposal against the planning officer's recommendation. However, we noted that Hayward & Co's position had been endorsed by the WDDC Committee and we considered that, in the context of the ad, it was unlikely to mislead.
On this 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
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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) but did not find it in breach.
5. Not upheld
We noted that the planning officer's report cited several policies when recommending that the application be refused. However, because the WDDC Committee had approved the application, subject to certain conditions, we considered that the claim was unlikely to mislead.
On this 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
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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) but did not find it in breach.
6. Not upheld
We noted that the ad did not outline English Heritage's response to the plans; it stated that it was inaccurate and then listed the buildings that would be retained as part of the plans. We considered readers would infer from that that English Heritage had said some of those buildings were due to be demolished. We noted that the planning documents made provision for the retention of aspects of the Lilliput Building that were thought to be the remains of historic former rope walk buildings. The site plan provided showed that a one-storey workshop that adjoined the Red Brick Cafe building was to be demolished but that the cafe building itself was not. Because the claims that the historic elements of the Lilliput building and all of the Red Brick Cafe would be retained appeared to be in line with the outline plans, which had been approved, we considered that they were unlikely to mislead.
On this 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
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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) but did not find it in breach.
7. Not upheld
We noted that none of the buildings that had been proposed for demolition were either nationally or locally listed, but that English Heritage had warned against overlooking their contribution to the site as a whole. We noted that English Heritage had said that a presumption in favour of retention of buildings with some individual historic significance should exist but that the loss of those buildings could be justified if it provided holistic benefits for the site. We considered that the claim the buildings were of "very limited historical value" accurately reflected the documentation submitted in support of the planning application. Although we noted that English Heritage did not endorse the application, and that the decision to grant the application (subject to conditions) went against the recommendation of the planning officer, the WDDC Committee decided that the loss of locally important buildings was justified in light of the opportunity for "much needed" investment in the site. Because the individual and collective historical value of the buildings proposed to be demolished was insufficient to prevent the application being granted, we considered that the claim was unlikely to mislead.
On this 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
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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) but did not find it in breach.
Action
No further action necessary.
