Background
Summary of Council decision:
Five issues were investigated of which one was upheld and four were not upheld.
Ad description
Two leaflets about a proposed wind farm development in Craven, North Yorkshire.
(a) One leaflet related to a public consultation period concerning amended planning proposals. It outlined the amended proposals and also featured a computer generated impression of how the landscape would look if the project went ahead. Under the heading, "Why Brightenber Hill?" the leaflet outlined the reasons for choosing that site location.
(b) The second leaflet was entitled, "Brightenber wind farm - summary fact sheet". It contained six bullet points about the proposed development. It also featured three maps of the site.
Issue
Friends of Craven Landscape challenged whether the following claims were misleading and could be substantiated:
1. "The electricity generated as a result of the project will, on average be enough to power 3,670 Craven District households*" in ad (a) and "The electricity generated as a result of the project will be fed into the local grid and will generate enough electricity to power 3,670* Craven homes per year" in ad (b);
2. "High indicative wind speeds to enable the production of substantial amounts of electricity" in ad (a);
3. "It is one of the least sensitive areas in the district for wind farm development and the visual effect on landscape would extend over a limited area due to natural screening provided by local topography and other features such as trees, hedges and buildings" in ad (a);
4. "The existing highway network will enable turbines to be delivered with minimal disruption to other road users" in ad (a); and
5. "It is estimated that the Brightenber Hill wind farm could save more than 7,741 tonnes of CO2 each year" in ad (b).
Response
EnergieKontor UK Ltd (EnergieKontor) stated that the ads were prepared as part of a community engagement plan for the proposed development and ad (a) was distributed to households within a 5 km radius of the site in order to invite members of the public to a pre-planning open exhibition. They said ad (a) contained a brief summary of the project history, including commentary on a previous planning application for five wind turbines. They said the current proposal was a scaled down project for three turbines.
1. & 5. EnergieKontor submitted their calculations for how many households they believed the development could power and also how much CO2 they believed could be displaced. They also provided references showing where they had extracted the variables to be used in these calculations.
A figure of 4,905 kWh was taken from the Department for Business Enterprise and Regulatory Reform (BERR) publication 'Regional and Local Authority Electricity Consumption Statistics'; this figure from 2009 represented the most recent figure for annual average household electricity consumption in Craven. They pointed out that this was explained in the footnotes of both ads. They used a capacity factor of 27.4%, taken from the Department for Energy and Climate Change (DECC) website as the average capacity factor for on-shore wind farms in the UK for 2009. They also used a carbon dioxide emissions saving factor of 430 g of CO2 per kWh, which was taken from the British Wind Energy Association (BWEA).
EnergieKontor calculated the estimated annual electricity production of the proposed development by multiplying the hours in a year (8,760 hours) with the capacity factor (27.4%) and the installed capacity of the three 2.5 MW turbines (7.5 MW): this produced a figure of 18,002 MWh (or 18,001,800 kWh) per annum. EnergieKontor then divided this by the average annual household energy consumption figure for Craven (4,905kWh) to work out the estimated equivalent number of households supplied by the proposed development and arrived at a figure of 3,670 households, as stated in the ad.
To calculate the estimated mass of carbon dioxide emissions "saved", or displaced, by the proposed development, EnergieKontor multiplied the estimated annual electricity production (18,001,800 kWh) by the carbon dioxide emissions savings factor (430 g) and arrived at a figure of 7,740,744 kg per annum, or 7,741 tonnes per annum, as stated in the ad.
EnergieKontor stated that it was standard industry practice to use generic information when estimating the potential energy output of a development prior to planning permission being approved. They pointed out that the ASA had accepted this approach in the past and had also accepted the use of an average capacity factor of 30%. They also stated that a standard figure for the number of homes powered per 1 MW of installed capacity was also widely used in the industry. EnergieKontor said that despite it being industry standard to use these generic figures, they considered that it was fairer to base their calculations on the DECC average capacity factor of 27.4% and the BERR average annual household electricity consumption for Craven. They said that in using these more up-to-date figures they had arrived at a lower figure, they therefore believed the claim was conservative.
2. EnergieKontor stated that they used the government's NOABL wind speed forecasting data to predict the average wind speeds for each of the sites of the proposed turbines. They asserted that this was standard industry practice. They submitted extracts from the database, which showed that the average wind speed was 7 m/s at a height of 45 m, and asserted that at the hub-height of the turbines – 60 m – the wind speeds would be higher. They also stated, given that there were no other operational commercial wind farms in Craven that the proposed development would be the largest renewable energy development in the district, in one of its windiest locations and would produce a substantial amount of electricity. Therefore they were happy that the claims were fully supportable and substantiated by the information provided. EnergieKontor did not believe that the claims were in breach of the Code.
3. EnergieKontor submitted an extract from the Environmental Statement (the Statement) previously submitted as part of the application for the previous five turbine proposal. They said the Statement was undertaken by independent Landscape Architects who provided an objective account in accordance with Environmental Impact Assessment regulations. They said the Statement provided commentary on the visual effect of the project from a number of different locations including all settlements within 5 km and dwellings within 2 km of the proposed site, as well as the impact on motorists and other road users. EnergieKontor maintained that the Statement consistently reported on the limiting visual impact of the project due to local topography, natural screening and buildings. EnergieKontor also submitted a map showing how limited the district was in terms of opportunities for wind farm projects; they said that 74% of the area was either National Park or an area of outstanding natural beauty.
Because the leaflet was distributed to those residents within 5 km of the site, EnergieKontor believed that it was an accurate and substantiated statement of fact to state that the proposed site is one of the least sensitive areas in the district and that views of the turbines would be limited.
4. EnergieKontor said that the project would require the movement of a number of 'abnormal' loads over a three-month period to transport parts of the turbines to the site. They said that these vehicles would move at normal speeds therefore there would always be access to premises and it would not be necessary to close any roads.
They said that enabling works would be required involving the widening of three bends but added that this would be on a stretch of road after the village of West Marton. They also said that further works at Gledstone Hall would take place within highway land and other works on land within their control. They also stated that the works would take place at different times and other necessary work such as the felling of 13 trees/stumps and pruning did not require planning consent, therefore this work could be undertaken prior to the construction of the wind farm, thereby lessening the cumulative effect of the works.
EnergieKontor stated that part of the Statement submitted with the previous planning permission included the view of transport consultants who advised that "the abnormal loads could be accommodated and delivered to site safely with negligible disruption to local traffic, local business and local residents". EnergieKontor added that the planning permission for the initial project was not refused on traffic or transportation grounds and that the current proposal would require almost 40% fewer abnormal vehicular movements than the previous proposal.
EnergieKontor also listed a series of conditions which would be agreed with the local authority prior to any works taking place to ensure that any disruption was limited. Furthermore they said that, within his appeal decision to the previous proposal, the Inspector had made no specific reference to any harm caused by the proposal's impact on road users. Moreover, the Inspector had made the following comment, "They [the Appellant] would also ensure that consideration is given to minimising disruption for residents of, and businesses in the area. In this regard two abnormal loads would not be permitted to travel in opposite directions at the same time and a journey time of about 40 minutes for one abnormal load to travel from the A59 to the site is not likely, even though there would be forty-nine journeys of this type, to cause significant delay for other road users".
Assessment
1. Upheld
The ASA noted both ads claimed the proposed development would provide enough electricity to power 3,670 homes in Craven. We also noted the calculations submitted by EnergieKontor used the average capacity factor for a UK on-shore wind farm from the DECC. We acknowledged that we had previously accepted claims based on average capacity factors. We also noted that EnergieKontor had used a lower capacity factor than what was often used in the industry for making estimates. Furthermore, we noted that they had used the average annual household energy consumption figures for Craven in their calculatoins, rather than using the standard figure for the number of homes powered per 1 MW of installed capacity. We acknowledged that by using these average figures EnergieKontor had arrived at a more conservative estimate. However, we also noted that, if marketers were basing claims on estimated figures and not historical or site-specific data, this must be made clear to consumers.
We noted that leaflet (a) stated, "The electricity generated as a result of the project will, on average be enough to power 3,670 Craven District households*". We noted that the footnote, referenced by the asterisk, mentioned the use of an average household electrical consumption figure for Craven. However, we considered that neither the claim nor the footnote made it clear that an average capacity factor had also been used. We noted the claim stated that the project "will" generate enough to power 3,670 households, and had used definite, and not conditional, language. Because we considered leaflet (a) had not made it clear that the claim was an estimate, based on an average capacity factor and not data specific to the proposed site, we concluded that it was misleading.
We noted leaflet (b) stated, "The electricity generated as a result of the project will be fed into the local grid and will generate enough electricity to power 3,670* Craven homes per year". We noted that this version of the claim used the same definite language as that in leaflet (a). We also noted that there was an additional footnote in leaflet (b) that mentioned the use of the average capacity factor. However, because the claim was expressed in definite terms we considered that the footnote about the average capacity factor was not sufficiently clear or prominent and had therefore contradicted, rather than qualified the claim. For these reasons we concluded that both claims were misleading.
Ad (a) breached 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).
Ad (b) breached 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
11.1
11.1
The basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information.
(Environmental claims).
2. Not upheld
We noted that, within a box entitled, "Why Brightenber Hill?" the ad stated, "High indicative wind speeds to enable the production of substantial amounts of electricity". We also noted that text in this box stated, "We have assessed the suitability of many sites across Craven District for wind farm development using planning, technical and environmental information and at Brightenber Hill our studies have taken place over several years". We considered that the "high indicative wind speeds" claim was made in the context of the Craven district. We noted the NOABL information submitted by the advertiser indicated that the average wind speeds in the surrounding area ranged from 6.1 m/s to 7.1 m/s. We noted that the average wind speed at the proposed site was at the higher end of this range. We noted that even a slight decrease in wind speeds could result in a substantial decrease in power generation. However, we considered that even operating at a capacity factor lower than 27.4%, it could still be claimed that the wind speeds at the proposed development were relatively high and could still expect to produce "substantial amounts of electricity". Notwithstanding that, we considered that the ads had made misleading claims based on the generation projections of the development, we concluded that the claim that the area had high indicative wind speeds had been substantiated and therefore was not misleading.
On this point we investigated ad (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) 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 noted the map submitted by EnergieKontor showed that a large portion of South Craven was either National Park land or an area of outstanding natural beauty, and therefore protected against development.
We noted the information contained in the Environmental Statement discussed the visual impact of the proposed development on the surrounding area. We noted that the Environmental Statement frequently reported that a combination of local topography, foliage and the orientation of buildings played a role in limiting the impact of the site on the visual amenity of the surrounding area. We acknowledged that the Statement reported that the potential visual effect within a 2 km radius of the site was small in comparison with the population of the surrounding area and concluded that the change to the visual amenity would not be unacceptable. We also noted that the Statement featured a commentary on all settlements within 5 km of the site. We noted that at each location the Statement reported that a combination of local topography, foliage and buildings limited the visual impact of the proposed development. We also noted that very few sites represented potential instances of significant effects to residents.
We considered that the claim, "it is one of the least sensitive areas in the district for wind farm development" was supported by the fact that a lot of the area was sensitive land that could not be used for wind farm development. We also considered that the Statement confirmed that natural screening would play a role in limiting the visual impact on the surrounding area. Because the ad only made qualified claims, that the area was "one of" the least sensitive areas and that natural screening played a role in limiting the visual effect of the site, and this had been supported by the independent report contained in the Statement, we concluded that the ad did not mislead on this point.
On this point we investigated ad (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) 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 ad stated, "The existing highway network will enable turbines to be delivered with minimal disruption to other road users". We considered that most readers would not believe that "minimal disruption" meant “no disruption at all”. Rather we considered that readers would infer from the claim that such disruption as there would be would be reduced as much as possible, taking into account that a number of vehicular movements and some degree of road works would be inevitable. In this context, because EnergieKontor had shown that: the vehicles would move at an average speed; no roads would have to be closed; and steps would be taken to reduce the impact on road users. Furthermore, because an independent source, the planning inspector, had concluded that the development would not cause serious delay we concluded that the claims did not mislead.
On this point we investigated ad (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) 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 leaflet (b) stated "It is estimated that the Brightenber Hill wind farm could save more than 7,741 tonnes of CO2 each year*". We noted that this claim used conditional language. We considered it was clear that this claim was an estimated figure and therefore that it was appropriate to base it on a generic capacity factor. We therefore concluded that the claim had not misled.
On this point we investigated ad (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
11.1
11.1
The basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information.
(Environmental claims) but did not find it in breach.
Action
The claims investigated and found to be in breach of the Code must not appear again unless adequate substantiation is held.
