The Banks Group Ltd

Background

Summary of Council decision:

Six issues were investigated, all were Not upheld.

Ad description

Two brochures for a proposed wind farm in County Durham, seen in May and June 2011.

a. One brochure featured six photomontages showing virtual images of the proposed wind farm from various viewpoints. On pages four and five of the brochure, two images were featured alongside text stating "Viewpoint 2: From property at Robin's Castle" and "Viewpoint 3: From Crakescar Cottage". On pages six and seven of the brochure, two images were featured alongside text stating "Viewpoint 6: From Woodland (west side)" and "Viewpoint 11: From Cockfield - turbines visible on the far horizon". On pages eight and nine of the brochure, two images were featured alongside text stating "Viewpoint 5: From Woodland Public House - shows the turbines that are visible (shown in white) and the wire frames of turbines (shown in blue) obscured by local trees and buildings" and "Viewpoint 9: From Hamsterley (Saunders Avenue) - wire frame turbines (shown in blue) illustrate turbines are not visible behind mature trees". Further text at the top of the page stated "Note: wire frame overlay images show the positioning of turbines in the landscape and what would be visible if there were no visual obstructions (i.e. trees, buildings, walls etc)".

Page 10 of brochure (a) featured a "Decibel Scale" listing various different noises ranked in order of their decibel levels. Text stated "Quiet Bedroom 35 dB(A)... Wind farm (at 350m) 35 - 45 dB(A)...".

b. Page four of the second brochure featured text stating "The Windy Bank Wind Farm will provide, on average, enough electricity to meet the domestic needs of around 7,400 households. This represents approximately 70% of households within the Teesdale district...".

Page six of this brochure featured text stating "In approximately 7-8 months (depending on wind resource and other factors) a wind farm will pay back the energy used to construct it. This means that after this time the electricity generated is a carbon free source of power...".

On page 14 of brochure (b), underneath a heading "Landscape and visual impacts" text stated "It has been found that there would not be significant effects on the landscape resource as a whole within the area studied. The assessment has however found that there would be adverse landscape and visual effects on some receptors close to the site, as would be expected for any wind farm proposal. The effect upon these properties is not considered to be unacceptable or to cause an overbearing detriment to the amenity of these properties ... ".

On the same page, underneath a heading "Ecology and ornithology", text stated "The application site lies outside any designated areas for nature conservation. The layout of the proposed wind farm has been designed to avoid any sensitive habitats. The effect of the proposal on designated areas such as North Pennine Moors SPA, habitats and species would not be significant. The ornithology assessment has concluded that potential effects on important bird species (sensitive and protected species) would not be significant ...".

Issue

The complainant challenged whether:

1. in brochure (a), the images of the turbines in the photomontages were misleading, because he believed the photographs had been taken at the wrong height and the images showed smaller turbines than the 115 m turbines that are to be used at the Windy Bank site;

2. brochure (a) gave a misleading impression of the decibel levels of the proposed wind farm by quoting an exaggerated figure for the quiet bedroom, 35 dB(A), in comparison, which he believed was misleading and could not be substantiated;

3. the claim in brochure (b) "The Windy Bank Wind Farm will provide, on average, enough electricity to meet the domestic needs of around 7,400 households. This represents approximately 70% of households within the Teesdale district" was misleading and could be substantiated;

4. the claim in brochure (b) "In approximately 7-8 months (depending on wind resource and other factors) a wind farm will pay back the energy used to construct it" was misleading and could be substantiated;

5. the claim in brochure (b) "It has been found that there would not be significant effects on the landscape resource as a whole within the area studied" was misleading and could be substantiated; and

6. the claims in brochure (b) "The effect of the proposal on designated areas such as North Pennine Moors SPA, habitats and species would not be significant" and "potential effects on important bird species (sensitive and protected species) would not be significant" were misleading and could be substantiated.

Response

The Banks Group Ltd (Banks Group) queried whether brochure (b), which was a statutory document that it was required to submit as part of its planning application, was outside of the ASA's remit. They explained that brochure (b) was a Non-Technical Summary (NTS) that summarised the information contained in the Environmental Statement (one of the planning application documents) in a non-technical way so that members of the public were able to understand and comment fully on the application. They said they had distributed the NTS at community meetings and by post to people in the local community and it was available for download on their website.

1. Banks Group explained that the photomontages had been produced by an independent landscape architect and an external consultancy which specialised in the production of such visualisations. Banks Group said they had also worked closely with the local planning officer in producing the photomontages, which had been submitted as part of the planning application, and had therefore produced them to the correct standard.

Banks Group maintained the method used to create the photomontages followed the Scottish Natural Heritage best practice guidance (SNH Guidance), a copy of which was provided, and the method had also been agreed with the planning authority. Banks Group provided a copy of the Environmental Statement (ES), one of the documents submitted as part of the planning application, which described the methodology used to produce the photomontages.

In response to specific concerns raised by the complainant about the photomontages, Banks Group provided an e-mail from the landscape architect who had been involved in producing them.

2. Banks Group explained that the figure had been taken from the Scottish Government's "Planning and Noise" 1/2011 Planning Advice Note and provided a copy of this.

3. Banks Group provided an extract from the ES, which had been submitted to the local planning authority as part of its planning application.

According to the ES, the Windy Bank proposal would generate 35.2 GWh of electricity per year. This figure had been calculated on the basis of five 2 MW turbines and using on-site wind speed data collected during a 12-month period from a height of 60 m above ground level. The figure took into account energy losses due to reasons, such as, scheduled maintenance and turbulence. The 35.2 GWh figure was then divided by the average household electricity consumption figure (4,700 kWh) as recommended by renewableUK (formerly the BWEA). They said this was a conservative figure because the latest government statistics indicated that the average UK household electricity consumption was 4,457 kWh. The 35.2 GWh figure was divided by the 4,700 kWh figure to produce a figure of 7,489, which represented the number of households whose electricity needs could be met. This was rounded down to 7,400.

They explained that, according to the 2001 Census, there were 10,465 inhabited households in Teesdale, and provided a copy of this; therefore, 7,400 households represented approximately 70% of the 10,465 households in the Teesdale area.

They therefore believed the claim had been substantiated and was not misleading.

4. Banks Group did not believe the claim was misleading. They said it was a generic statement about the energy payback for wind farms rather than specifically about the proposed site. They provided two promotional brochures from a wind turbine manufacturer which stated the energy payback time for a 2 MW onshore turbine was 7.7 months, and the energy payback time for a 3 MW onshore turbine was 6.6 months. They also provided the life cycle assessment (LCA) reports which underpinned the figures quoted in the brochures.

In addition they provided an LCA report for an onshore wind farm in Denmark, produced by a renewable energy company. The wind farm consisted of eight 2 MW turbines. The report stated that the energy payback time for the wind farm was 7.7 months.

Two of the LCAs provided had been carried out in accordance with the ISO 14044 standard for LCA. Although the other LCA had not followed the ISO 14044 standard, its methodology had been critically reviewed by an external consultancy.

Banks Group explained that the turbines they proposed to use on their site ranged from 2 MW to 3 MW and that was why they rounded the figure to "7-8 months". They explained that the nature of wind farm planning and construction meant that the actual turbines used on a site were not decided until after planning was granted and the contract was put out to tender. They also said that they had made it clear that energy payback was dependent on wind resource and other factors.

5. Banks Group provided a copy of the ES, which was submitted as part of the planning application. The ES described the proposal and reported the findings of their Environmental Impact Assessment (EIA). They said the relevant section of the ES was the section entitled "Landscape and Visual".

Banks Group explained that the "Introduction" and "Conclusion" sections of brochure (b) made clear that the NTS was a summary of the EIA and ES. In the Introduction, text stated "The purpose of this non technical summary is to summarise the results of the environmental impact assessment carried out for the Windy Bank Wind Farm proposal. It contains a description of the development, consideration of the potential environmental impacts and details of the measures taken to prevent and reduce these impacts". In the Conclusion section, text stated "The proposal has been the subject of an environmental impact assessment, which has examined the potential environmental effects. These are reported in the environmental statement along with a detailed description of the proposal." They said that because the NTS formed part of the planning application, its content should not be considered in isolation but with reference to the ES and they believed the Introduction and Conclusion sections of brochure (b) made that clear.

They explained that the claim was intended to highlight that on a wider scale or "as a whole" there would not be significant effects. In other words, the significant effects would be localised and the majority of the area studied would not be significantly affected. They believed the claim was set in the context of the sentences which followed, which explained that whilst there would be localised significant effects, these were not unacceptable. The sentences which followed the claim stated "The assessment has however found that there would be adverse landscape and visual effects on some receptors close to the site, as would be expected for any wind farm proposal. The affect upon these properties is not considered to be unacceptable or to cause an overbearing detriment to the amenity of these properties ... ".

They said an effect could still be significant without being unacceptable. They explained this was why it was difficult to pinpoint an exact reference in the ES to significance ratings which summarised the overall assessment. They further explained that the wording used such as "significant" or "unacceptable" effects was very carefully chosen in accordance with the Town and Country Planning (England and Wales) (Environmental Impact Assessment) Regulations 1999 (EIA Regulations).

6. Banks Group explained the intention behind the claim "The effect of the proposal on designated areas such as North Pennine Moors SPA, habitats and species would not be significant" was to state there would be no significant effects on habitats and species within the North Pennine Moors SPA (Special Protection Area), rather than there would be no significant effects on habitats and species generally. Nevertheless, they believed the effects on habitats and species generally would not be significant.

Similarly, they maintained the claim "potential effects on important bird species (sensitive and protected species) would not be significant" was limited to sensitive and protected bird species and did not therefore state there would be no significant effects on any bird species in the area.

They referred to the "Ecology" and "Ornithology" sections of the ES. They explained that Tables 7.2 and 8.33 contained matrices showing the magnitude of effects and which effects were considered significant under the EIA Regulations. They said the measure of significance of effect had been formulated in accordance with the Institute of Ecology and Environmental Management (IEEM) guidelines on ecological impact assessment, a copy of which was provided.

Banks Group understood the complainant had provided to the ASA copies of letters sent to the planning authority in which consultees had raised concerns about the methodologies used in their ecological and ornithological surveys. They explained that under relevant planning legislation, the authority had the ability to formally request further information from the applicant if they considered the submitted ES to be inadequate. They said the planning authority was in the process of evaluating the ES and to date Banks Group had received no such request. They also explained that they had worked closely with the planning authority in developing appropriate methodologies for assessment of the ecological and ornithological effects of the development. They believed their methodologies were appropriate, accurate and gave a clear picture of any potentially significant environmental effect. They said it could not be assumed that the objections were necessarily valid. They explained that during the planning process, 'holding' objections were sometimes lodged until the matters of concern were discussed and specific aspects clarified or amended, at which point objections were often withdrawn.

They said they had complied with the relevant best practice guidance, in particular, the Bat Conservation Trust Bat Surveys Good Practice Guidance, the Natural England Guidance TIN069 ("Assessing the effects of onshore wind farms on birds") and TIN051 ("Bats and onshore wind turbines interim guidance").

Assessment

The ASA understood that brochure (b) was a Non-Technical Summary which was intended to summarise the main findings of an environmental assessment in a clear and concise format in order to allow the public to understand the development proposal and its anticipated environmental outcomes. We noted Banks Group's argument that brochure (b) was not a marketing communication but we disagreed. We considered that because brochure (b) had been distributed to local residents and was available for download from its website, it constituted advertising material and was therefore subject to the CAP Code.

1. Not upheld

We noted that the photomontages had been produced by an independent landscape architect, an external consultancy which specialised in producing landscape visualisations and with guidance and input from the local planning authority.

We also noted that the complainant's particular concerns were that the photographs had been taken from a crouching level so that the angle distorted the perception of the wind turbines and that the turbines featured in the image were smaller than the ones proposed for the development.

We considered the e-mail from the landscape architect. We noted that she had confirmed that the photographs were taken at a height of 1.6 m (five feet and three inches), and considered therefore that the photographs had not been taken from a crouching level. We also noted that she had confirmed that the turbines featured in the image were modelled on a turbine of 115 m in height, which we understood from Banks Group and the ES, was the maximum height of the proposed turbines to be used in the development.

We therefore concluded that the images of the turbines in the photomontages had been substantiated, and were not therefore misleading.

On this point, we investigated brochure (a) 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), 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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) but did not find it in breach.

2. Not upheld

We noted that the figure "35dB(A)" had been taken from the Scottish Government's "Planning and Noise" Planning Advice Note 1/2011, a copy of which was provided. We considered that because this figure had been taken from a recent government publication, it had been substantiated and was not therefore misleading.

3. Not upheld

We noted that in calculating the energy generation figure, Banks Group had used turbines with 2MW output, which was the minimum output of the proposed turbines. We also noted that they had used on-site wind speed data and taken into account factors such as scheduled maintenance and turbulence which would affect the functioning of the wind farm. They had also used an industry-recognised figure for the average household electricity consumption figure. We considered that the energy generation figure, divided by the average household electricity consumption figure, resulted in the figure 7,489, which had been rounded to 7,400 in the brochure.

We noted that Banks Group had used data from the 2001 Census for the number of households in Teesdale. We understand this was the latest Census whose results had been published and we therefore considered it reasonable to rely on this figure. We noted that 7,400 represented just over 70% of the households in Teesdale.

We therefore concluded that the claim "The Windy Bank Wind Farm will provide, on average, enough electricity to meet the domestic needs of around 7,400 households. This represents approximately 70% of households within the Teesdale district" had been substantiated and was not misleading.

On this point, we investigated brochure (b) 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), 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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) but did not find it in breach.

4. Not upheld

We agreed with Banks Group that the claim was a generic statement rather than specifically about the proposed development and that it was qualified to make clear that energy payback time depended on wind resource and other factors.

We considered the LCA reports. We noted that two of them had been carried out in accordance with the relevant ISO Standard, and the other had had its methodology audited and approved by an external consultancy. We noted that the LCA measured the resource consumption across the entire life cycle of a wind farm, including the manufacture of the wind farm components such as the turbines, transport to site and installation of the components, operation of the wind farm (including maintenance) and the dismantling and disposal of parts at the end of the wind farm's lifetime. We also noted that the purpose of the LCA was to calculate the period a wind turbine had to operate before it had produced as much energy as it consumed in its total life cycle.

We noted that the LCA reports stated the energy payback time of an onshore wind farm was 7.2 months (for 1.65 MW turbines), 7.7 months (for 2 MW turbines) and 6.6 months (for 3 MW turbines). However, we noted that the LCA figure took into account the energy consumption of a wind farm across its entire life cycle, whereas the claim was limited to the construction period of a wind farm. We therefore considered that the claim overestimated the amount of time it would take for a wind farm to payback the energy used to construct it, and had quoted a conservative figure.

For these reasons, we concluded that the claim had been substantiated and was not therefore misleading.

5. Not upheld

We noted Banks Group's comment that they considered it was clear from the Introduction and Conclusion sections that the purpose of brochure (b) was to summarise the ES and results of the EIA, and that the claim should be interpreted in that context, although we disagreed. We considered that the claim was not qualified to make clear that it summarised the results of the EIA or the ES and considered it was therefore an absolute claim.

However, we agreed with Banks Group that readers were likely to interpret the claim to mean that on a wide scale or "as a whole" across the area studied there would not be significant effects, yet there may be localised significant effects. We considered this was also clear from the sentences which followed the claim.

We considered the "Landscape and Visual" section of the ES. We noted that according to the ES, the landscape and visual impact assessment had been carried out in accordance with industry best practice guidance. We also noted that the ES defined 'landscape resource' as "the combination and distribution of physical components that contribute to landscape context and character and how it is experienced" and confirmed that the following factors had been considered when assessing the significance of effect on landscape resource: the sensitivity of the receptor, the magnitude of effect, the nature of the effect, the value attached to the landscape resource affected, and the type and rate of changes that were likely to occur.

We noted Banks Group's comment that it was difficult to pinpoint within the ES an overall assessment of significance ratings. We noted that, according to the ES, there would be significant effects at a localised level, for example, on the visual amenity of six dwellings located within or immediately adjacent to the development site. However, we noted that in a section entitled "Statement of Significance" text stated "The incidences of significant effects on Landscape Resource would occur at a local scale in terms of the 25km radius study area as a whole ... ". We considered this therefore backed the claim that effects on the area studied as a whole would not be significant.

For these reasons, we considered that the claim "It has been found that there would not be significant effects on the landscape resource as a whole within the area studied" had been substantiated and was not misleading.

6. Not upheld

We considered the Ecology and Ornithology sections of the ES. We noted that, according to the ES, the ecological and ornithological surveys and assessment had been carried out in accordance with relevant legislation and best practice guidance, and that Banks Group had measured the significance of effect in accordance with the IEEM guidelines on ecological impact assessment.

We understood that Table 8.9 of the ES entitled "Summary of Impact Significance" summarised the significance of effects of the proposed development on bird species. We noted that all of the effects had been evaluated to be not significant or of minor significance, and we understood that under the EIA Regulations an effect which had been assessed as being of minor significance was not significant for the purposes of the Regulations.

We understood that Table 7.8 of the ES entitled "Summary of Impact Significance (valued receptors only)" summarised the significance of effects of the proposed development on fauna, habitats and animal species, such as bats, otters and badgers. We noted that all of the effects had been evaluated to be not significant or of minor significance, and we understood that under the EIA Regulations they were therefore not significant.

We considered that the claims accurately represented the findings of the EIA, and the contents of the ES, which reported that the effects of the proposed development on habitats and species would not be significant.

We noted that the complainant had provided copies of letters of objection from certain consultees to the planning authority in which they raised concerns about the survey methodologies which underpinned the findings of the EIA and the contents of the ES, in particular in relation to bats, birds and the great crested newt. However, we understood that Banks Group had followed the relevant best practice guidance in relation to its survey methodologies and we noted that they provided information to the ASA in response to each of the concerns raised by the consultees which answered those concerns. We also noted Bank Group's comment that just because objections and concerns had been raised, it was not necessarily the case that they were correct and valid, and we agreed with them.

For these reasons, we concluded that the claim had been substantiated and was not therefore misleading.

Action

No further action necessary.

CAP Code (Edition 12)

3.1 3.11 3.3 3.7

ASA Adjudication on The Banks Group Ltd t/a BanksRenewables

Background

Ad description

Issue

Response

Assessment

Action

CAP Code (Edition 12)

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