Articles | Not a Game of Drones – Operating within the Law

Tom Maple, partner in the Dispute Resolution team, takes a closer look at the law relating to the flying of “small unmanned aircraft”, more commonly known as Drones.

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Tom Maple

Tom Maple

As “Small unmanned aircraft” commonly now called drones, are going to become part of our everyday lives (recent reported uses, leaving aside Amazon deliveries, include surveillance by Devon and Cornwall Police Forces and the use of drones to spray pesticides on large farms - read more, it is vital that those operating drones, know the law.

With the use of drones set to proliferate, it is important that users, be they businesses or individuals, realise that the use of drones is regulated and understand and comply with those regulations. I have, therefore, taken the opportunity to provide greater detail about some of those regulations below as well as looking to the future and looking at what new rules and regulations may be coming our way.

Civil Aviation Authority (CAA) & the Air Navigation Order (ANO)

The main aviation rules regarding the flying of drones are contained in the ANO, the most important of which stipulate:

  • The use of a drone must not endanger person or property.
  • Unaided visual contact must be maintained at all times so that the operator can monitor the drone’s flight path and ensure collisions are avoided. A drone must not be flown at a height of more than 400ft above the surface (save for in very specific circumstances).
  • If the drone is over 7kg (excluding fuel) it must not be flown in certain categories of airspace absent permission from Air Traffic Control – For example, a drone must not be flown in Class D airspace: airspace around the larger airfields in the UK.
  • A drone must not be flown for the purposes of “aerial work”[1] unless permission of the CAA has been obtained.

Small Unmanned Surveillance Aircraft

The ANO also stipulates that, unless the operator has the CAA’s permission, a “small unmanned surveillance aircraft”[2] must not be flown where the flight of that drone:

  • Goes over or within 150m of any congested area or “an organised open-air assembly of more than 1,000 persons”; and/ or
  • Goes within 50m of any vessel, vehicle or structure.

Further, the drone must not go within 30m of any person during take off or landing (except for the operator or any person under the control of the operator).

Obtaining Permission to operate a Drone

If you intend to use a small unmanned aircraft or drone outside of the operating limits of the ANO then you will need permission from the CAA, even if your activity is non-commercial.

The type of permission required varies depending on use. For example, the CAA Guidance says that if you want to fly a small unmanned aircraft over a congested area, or within 50m of a building permission must be obtained from the CAA to land or operate in that area (Permissions may be valid for one flight, or up to 12 months).

In order to demonstrate that sufficient safety measures have been put in place, the operator will have to demonstrate that they have taken the necessary steps to ensure their drone will not endanger people, property or aircraft. This may involve, as a minimum, producing a risk assessment for the CAA if it is a one-off flight (Where the use is likely to be regular, for example, a company carrying out regular maintenance inspections of its buildings, the operator will likely need to submit an operating manual to the CAA before the issue of whether to grant a permission can be considered).

The CAA will need be satisfied that the operator of the device is suitably skilled to fly it. The ‘pilot’ therefore will most likely need to undergo an assessment process with one of the approved National Qualified Training Schools. If the permission sought is for commercial work i.e. “aerial work”, the applicant will also need to show a clear understanding of airmanship, airspace, aviation law and good flying practice.

To be clear, the permission granted by the CAA is primarily looking at controlling use from an airspace and safety perspective. Therefore, operators are still subject to all other applicable laws (e.g. those relating to trespass, negligence and privacy) as well as the rules and regulations of bodies such as the Highways Agency and local authorities.

Larger Drones

Unmanned aircraft of over 20kg are subject to the whole of the UK Aviation regulations as listed within the ANO [the above is merely a snapshot of the ANO] (although they may be exempted from certain requirements by the CAA).

If the weight is over 150kg, there are additional certification requirements by the European Aviation Safety Agency (which are unlikely to be affected by Brexit).

Modern Transport Bill

The Modern Transport Bill, announced in the Queen's speech in March 2016, aims to “put Britain at the forefront of the modern transport revolution” from laws relating to driverless cars as well as provisions regarding the safety of drone flight.

Though it wasn’t explicitly stated by the Queen, it would appear from the notes to the Queen’s Speech that the Bill plans to specifically regulate drones for the first time under the auspices of one act of parliament rather than primarily relying on the CAA Regulations which were originally designed for aircraft.

Whilst it isn’t clear what is intended (there is no Bill yet) speculation is abound that the government will introduce a registration system similar to the one recently launched in the US, which requires drone owners to register their drone using an app, and display their registration number on their drone.

Consultations

The Civil Aviation Authority is planning a consultation in the latter half of 2016. One assumes that, as well as addressing the type and nature of regulation that will be required, the CAA will also look at practical issues such as where you can fly, certification of users/ obligatory testing for all, and an obligation to submit flight plans for commercial users or some sort of drone air traffic control.

Conclusions

The law relating to drones must be better understood and taken extremely seriously. A recent near miss at Heathrow demonstrated how, at present, a number of drone users seem blissfully unaware of the legal position (and the law varies country to country) and the sanction that can be imposed not to mention the risks that third parties are exposed to from unauthorised use. A small object accidentally dropped from or falling off of a drone could result in a serious injury and a multi million pound personal injury claim.

It is vital that all users know and comply with the relevant regulations and ensure they have adequate insurance cover in place. Whilst this may be a simply a case of notifying ones insurer, assuming it is covered is a dangerous game of drones.

So stay safe, know the law and take proper professional advice.

Footnotes

[1] In practical terms, this means commercial work, which might be something as simple as taking a photograph for onward sale.
[2] Defined as a small unmanned aircraft having a mass of not more than 20kg without fuel, equipped to take any form of surveillance or data acquisition. Different rules apply to aircraft of over 20kg.

This represents a mere snapshot of the law. It is for information only and is not intended to be, nor does it amount to, legal advice and therefore should not be relied upon as such. If you require advice on the use of drones, please contact us without delay.