Drones: A Modern Intrusion

“You don’t own the airspace - I can fly my drone over your property!”

This assertion is increasingly common among self-proclaimed ‘auditors’. But is it truly accurate??

In this article, I aim to equip property owners and their security teams with the knowledge needed to safeguard their airspace against drone trespass.?

Drone Overflights and Trespass Law?

Does a drone flying over private property constitute trespass? Trespass to land involves any unjustifiable intrusion by one person upon the land in the possession of another (Entick v Carrington [1765] EWHC KB J98). This encompasses not only the surface of the land but also the airspace above and the subsoil beneath it, to the extent necessary for the landowner’s ordinary use and enjoyment of the land (Bernstein v Skyviews & General Ltd [1977] EWHC QB 1).?

It is well-established in common law that a landowner’s rights extend to the airspace necessary for the ordinary use and enjoyment of their land. This principle was clearly enunciated in Bernstein v Skyviews, where Griffiths J stated that a landowner’s rights to airspace are confined to a height necessary for the ordinary use and enjoyment of the land and the structures upon it. While airspace beyond this may be freely navigated, the intrusion of a drone within this protected zone constitutes a trespass.?

Drones, by their nature, operate at lower altitudes where they can interfere with the ordinary use and enjoyment of the land. The presence of a drone hovering over a property, potentially capturing images or videos, poses a substantial interference with the landowner’s privacy and use of their property. In Bernstein v Skyviews, although the court found no trespass by aerial photography at high altitudes, it emphasised that lower altitudes necessary for ordinary use and enjoyment would be protected from such intrusions.?

Legal Protections and Airspace Rights?

Section 76(1) of the Civil Aviation Act 1982, which protects aircraft flying at a reasonable height, does not extend protection to drones that intrude at lower, unreasonable heights over private property. Drones typically operate at altitudes that can intrude upon this protected airspace, unlike traditional aircraft.?

The principle set out in Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35 clarifies that property rights extend to the depths necessary for use and enjoyment. Similarly, airspace rights should protect the space necessary for the privacy and security of the property.?

The case of Pickering v Rudd [1815] EWHC KB J43 further reinforces the notion that any part of the property, whether a tree or airspace necessary for enjoyment, should not be encroached upon without permission. This principle extends to unauthorised drone flights over private property.?

Drones and Criminal Conduct?

Could the use of a drone over private land be considered criminal conduct? Section 68 of the Criminal Justice and Public Order Act 1994 creates the offence of aggravated trespass. A person commits this offence if they trespass on land, in the open air, and in relation to any lawful activity being carried out or about to be carried out on that or adjoining land, does anything intended to intimidate, obstruct, or disrupt that activity.?

For example, if a drone is flown over a theme park at low altitudes, posing a risk of collision with structures or falling on people, thereby forcing the park to suspend rides or evacuate areas, it could be argued that the operator has obstructed or disrupted the lawful activity of the park. Similar health and safety concerns at other sites could prompt actions that obstruct or disrupt lawful activities, thus falling under the purview of aggravated trespass.?

A constable in uniform who reasonably suspects that a person is committing this offence may arrest them without a warrant. A person found guilty of aggravated trespass is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.?

Conclusion?

In conclusion, the operation of a drone over private property within the airspace necessary for ordinary use and enjoyment constitutes an actionable trespass. This intrusion disrupts the privacy and enjoyment of the land, akin to the principles set out in Bernstein v Skyviews and supported by subsequent jurisprudence on property rights. Courts should recognise the operation of drones at low altitudes over private property as an actionable trespass, providing the claimant with the necessary relief and protection of their property rights. Moreover, in scenarios where such conduct disrupts lawful activities, criminal liability for aggravated trespass may also arise.?

Legal Disclaimer: This article provides general information and does not constitute formal legal advice. The author is not liable for how this information is used. Always seek professional legal advice for specific situations.?