At the weekend, the UK Government announced plans to introduce drone registration and safety awareness courses, with the aim of better regulating how drones are used in the UK. What rules currently apply to using drones in Scotland?

Drones are, increasingly, a part of everyday life. They can be used for aerial photography, for delivering goods or just for fun. As the number of drones in the sky grows, it is ever more likely that they will be flying over private property.

As such, it is increasingly important that drone operators and landowners have a clear idea of their responsibilities and rights. Whilst some of the laws regulating drone use are reserved powers and governed by UK-wide laws, certain areas are regulated by Scots law.

Drone Operators

All drone operators must abide by the "Drone Code", which is a consolidation of the relevant provisions of the Air Navigation Order 2016. This provides that drones must:

  • be used safely;
  • be kept within visual range of the operator;
  • be flown no higher than 120m;
  • keep at least 50m from persons or structures, and at least 150m from crowds or built-up areas (including not overflying these); and
  • be kept away from airports and airfield flight paths.

If you are not operating your drone commercially, this is the current limit of the requirements placed upon you. If, however, you are flying as part of a commercial enterprise, there are additional duties. You must seek permission from the Civil Aviation Authority. This will involve a test of your skill at the controls. A breach of the 2016 Order is a criminal offence.

Many drones have cameras, and aerial filming and photography are popular uses for drones. Commercial operators who intend to record photographs or video footage should be aware of their duties in terms of the Data Protection Act (and, from May 2018 the General Data Protection Regulation).

The Information Commissioner's Office has published guidelines for this purpose. The Civil Aviation Act 1982 imposes extra duties upon operators of this type of drone. In particular, operators should try to avoid "collateral intrusion", i.e. the inadvertent storing of images of individuals while filming another target. Operators may wish to ensure that their equipment is not set to continuously record while active.

Drones and Scottish land access rules

Looking at this issue from the other direction, what rights do landowners have to prevent drones from being used on or over their land?

Although not certain, it is likely that the use of drones for leisure (i.e. non-commercial) purposes would fall within the scope of "recreational purposes" in terms of the Land Reform (Scotland) Act 2003 and be subject to the Scottish Outdoor Access Code. In that respect, landowners have the same powers to prevent drone operators from flying from or over their land as they do to prevent hikers traversing it. This is, of course, very little power indeed.

As (albeit small) aircraft, drones fall within the scope of the Civil Aviation Act 1982, section 76(1) of which provides that no action of trespass or nuisance may arise solely out of the flight of an aircraft over property (whether for commercial or leisure purposes). This is subject to the flight being at a reasonable height and complying with the Air Navigation Order.

There is relatively little guidance as to what constitutes a 'reasonable' height (previous cases related to aircraft carrying out aerial photography), but it will depend on the facts as the court must have regard to all the circumstances of the case in reaching its decision.

This does not mean that drone operators are free to do whatever they wish in the airspace above private land, however. Where the drone is operated in an unreasonable manner or, for example, is emitting noxious chemicals, or is conducting constant surveillance of a house and its occupants, this behaviour may still be enough to ground an action in nuisance.

Use that does not comply with permitted use under the 2016 Order or is below a reasonable height will need approval.

Landowners may also attempt to limit drone use contractually through terms and conditions of access (for example, for buildings or sites where there is paid for access) - either through direct restrictions or through provisions dealing with intellectual property rights in photos and videos. Whether such terms are effective will (again) likely depend on the facts, how the terms are communicated and whether as a matter of law those terms were capable of binding a drone operator who never physically enters the premises.

Conclusion

As is often the case with technology, the rise of the drones has rather stolen a march on the development of the law.

Whether the Government's proposals will help improve the safe use of drones, remains to be seen.

In the meantime, operators should take care to abide by the regulations that currently apply and rules or procedures used by landowners to govern access. Landowners should be aware of the rights of drone operators to access, and to overfly, their land and think carefully about how they seek to control access to ensure that it is lawful and effective.

Contributor

Martin Sloan

Partner