Clearing the air for drones

Edward Hicks outlines the legal problems that must be resolved in order for the UK to unlock the full commercial potential of drones. Recent events at Gatwick and Heathrow highlighted the difficulties of policing drone use. In January, the government published its proposals for further developments in the regulation of drone use, in its consultation response Taking Flight: The Future of Drones in the UK. It is also necessary to understand the private law ramifications of drone use, and how they interact with the regulations, to appreciate the legal difficulties faced by drone operators. The regulatory regime The principal regulatory legislation is the Civil Aviation Act 1982 and the Air Navigation Order 2016 (ANO) as amended by the Air Navigation (Amendment) Order 2018. This establishes a specific regulatory regime (see box) for small unmanned aircraft weighing less than 20kg (excluding fuel), ie drones, and exempts them from the majority of the ANO’s requirements. The restrictions under the ANO can be overridden with appropriate permission, typically from the Civil Aviation Authority (CAA). New restrictions will be coming into force in November 2019, including the registration of drone operators and competency tests for pilots. The government’s paper indicates more restrictions to come. Private rights However, airspace may be privately owned, and entry into it without licence will be a trespass. Use of airspace even without a trespass may constitute an interference with neighbouring property and an actionable nuisance. To appreciate the legal limits on drone flights it is also therefore necessary to consider private property rights. It was established in Lord Bernstein of Leigh v Skyviews & General Ltd [1977] 2 All ER 902 that, in the case of aircraft, the owner of the soil has the right to the airspace above it “to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it”. Above that height “he has no greater rights in the airspace than any other member of the public”. Unfortunately, no exact measurement was specified. The same height would seem to be applicable to a drone as to an Airbus A380. In Bernstein, the light aircraft operating “many hundreds of feet” above the ground was not trespassing. Flight without licence under 400ft could constitute a trespass per se against the landowner. Irrespective of trespass, a drone’s presence could constitute a nuisance if it interferes with the enjoyment of nearby land. In particular, noise and the risk of items falling might be grounds for liability. However, section 76(1) of the Civil Aviation Act 1982 establishes a statutory defence to any action for trespass or nuisance by reason of the flight of an aircraft over any property at a height above the ground which is in all the circumstances (including weather conditions) reasonable. The flight itself does not have to be reasonable, merely its height (Peires v Bickerton’s Aerodromes Ltd [2017] EWCA Civ 273). The provision permits, for example, take off and landing of fixed-wing aircraft over neighbouring land. This legislation was seemingly not designed with low altitude cruising in mind. However, in the case of drones, being quieter and less obtrusive than larger aircraft, this provision may enable them to cruise lawfully below 400ft. Reasonableness would likely depend on the extent to which the drone was audible from the ground.    The drone zone? Drone operators may therefore be in some difficulty in establishing any airspace in which they can lawfully operate without the permission of the landowner or the CAA. Flight above 400ft is prohibited without CAA permission. Flight below 400ft may constitute a trespass or a nuisance or both. The challenge is to establish a strata of airspace between these limits in which the drone can lawfully fly in the particular weather conditions. In the absence of legislation addressing private law considerations, the courts are likely to have to address this issue sooner or later. However, they will be applying common law developed over centuries, for most of which manned flight was a dream, and statutory provisions designed for manned aircraft intended to fly well above 400ft. Drone operators are sandwiched between strict regulation from above and common law rights below. If the government is truly committed to unlocking the potential benefits offered by the development of drone flight, it is going to have to address the challenges posed by private law rights to airspace at low altitude. Judging the legality of drone flight on an assessment of “reasonableness” on a case-by-case basis, depending on the particular drone used and the prevailing weather conditions, may not provide the certainty required for viable commercial operations without the constant threat of litigation by disgruntled landowners. It may be that what is required is some sort of public right of way in airspace – an “aerial highway” – in which drones can lawfully operate, rather than by defining merely where they cannot operate. Key restrictions on drones The Air Navigation Order 2016 provides that: Drones must not be flown more than 400ft above the surface Drones are restricted from flying near aerodromes at any height, although the extent of the exclusion zone depends on the particular aerodrome and the size of the drone Drones equipped to undertake any form of surveillance or data acquisition (which would include having a camera) are restricted from flying near to industrial, commercial or residential areas, open-air assemblies of more than 1,000 people, other vehicles or people The remote pilot must maintain direct, unaided visual contact with the drone Drones must not be flown for commercial purposes Edward Hicks is a barrister at Radcliffe Chambers