Local authorities need to have a clear understanding of the legislation on drones and an enforceable policy in place or they are putting themselves at risk, write Richard Ryan and Chris Gee.
Our recent research with over 350 local authorities confirmed that councils do not have appropriate policies in place for drones and where there is a policy in place, it is not consistent with CAA regulations. We did not find a single policy that was accurate, up to date or enforceable.
Drones are here to stay, and the number of drones and unmanned aircraft is forecast to grow rapidly for both recreational use and commercial operations. Local authorities have a significant role to play in promoting the safe use of drones and creating an environment that supports the economic growth of the sector. We also believe that local authorities could have a very interesting role managing the governance of lower level airspace.
Airspace is a national asset that needs to be shared in the most effective and efficient way to meet the overall needs of the UK. The biggest challenge to the future of unmanned aviation is public perception. The battleground here will be about airspace governance – the policies and rules that need to be put in place such that the benefits of unmanned aviation are seen to outweigh the perceived risks and nuisance.
The CAA is the regulator for the UK airspace structure and is the only organisation that can authorise changes to the structure of airspace. This works well for traditional aviation and there is an airspace change process that enables airports and our national air traffic control provider to request changes to the airspace structure. This change process is well defined and involves public consultation with local communities. It works effectively for governing higher-level airspace and airspace around airports.
However, lower level airspace that will be occupied by delivery drones and urban air mobility services is a bit like the Wild West. As long as the remote pilot complies with the CAA regulations, then unmanned aircraft can fly wherever they like. There are further restrictions that relate to Temporary Danger Areas (TDA’s) whereby drones can fly Beyond Visual Line of Sight (BVLOS), but this is not a viable option for scaling to meet the future volume of traffic.
There is a bigger picture that needs to be addressed around the governance of lower level airspace. Who decides that it is acceptable for unmanned aircraft to fly over the local parish graveyard? Who determines that 60 flights an hour at night over my house is acceptable when the flight could equally fly over a parallel route? PwC’s “Building Trust in Drones” research revealed that only 31% of the UK public feel positive towards drone technology. The biggest concern was the improper use of drones and 70% of respondents wanted routes to be registered with the CAA.
The CAA will not have the capacity nor the local knowledge to deal with this micro-managed governance of lower level airspace. We believe there will need to be a framework in place for the CAA to delegate governance of lower level airspace to a local body that can engage with the public and address their concerns, which may be varied and many; especially if we take the USA as an example. Local authorities would be well positioned to play that role.
Drone legislation is complex with regular changes such as the mandatory drone registration scheme introduced at the end of 2019 (whereby only 60,000 registered users were recorded Dec 2019) and there will be widespread changes with the introduction of complex European Union Aviation Safety Agency (EASA) regulations in June 2020. A local authority may find it substantially more cost effective to subscribe to a policy service rather than develop and maintain one in-house. Local authorities have a significant role to play in promoting the safe use of drones, creating an environment that supports the economic growth of the sector and also facilitating the police in enforcement activities.
The safety regulations are mainly contained in Articles 94 and 95 of the Air Navigation Order (ANO) are fundamental and are referenced in CAP 393. These are safety regulations and do not encompass matters relating to privacy and security. The ANO articles set limits on where unmanned aircraft may fly and whether they can be used for commercial purposes (commercial operations) and do not necessarily include hobbyists or model flying clubs. The key ANO articles of relevance are:
- Article 241 – endangering safety of any person or property
- Article 94 – small unmanned aircraft: requirements
- Article 94A – small unmanned aircraft; permissions for certain flights
- Article 94B – small unmanned aircraft: Interpretation of expressions used in the definition of “flight restriction zone”
- Article 95 – small unmanned surveillance aircraft
There is inherent confusion within the various regulations such as Schedule 2 of the ANO defines a Small Unmanned Aircraft as follows:
“any unmanned aircraft, other than a balloon or a kite, having a mass of not more than 20kg without its fuel but including any articles or equipment installed in or attached to the aircraft at the commencement of its flight;”
Although not specified in the ANO, the CAA adopts the following definitions:
‘unmanned aircraft’ means any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board;
‘aircraft’ means any machine that can derive support in the atmosphere from the reactions of the air other than reactions of the air against the earth's surface;
Whilst there are significant benefits from the use of drones, given the breadth of airspace, air traffic volume and lower flying altitudes across large geographies of a local authority, the potential risks need to be understood and mitigated.
The future of unmanned aviation is evolving rapidly and local authorities should ensure that they have a lead officer responsible for implementing and maintaining appropriate policy. The policy should initially be focused on drones and include:
- National context - up to date with the latest legislation and regulation as changes are announced;
- Local context - relevant local airspace restrictions and permissions required to fly in these areas;
- Council owned land - restrictions and opportunities for recreational flying from council owned property and land;
- Commercial use of drones - facilitating the growth and economic benefits of commercial drone operations;
- Exceptions - management of exceptions such as emergency services and flying clubs;
- Suspicious drone activity - Reporting suspicious activity or drone usage that presents a threat to the public;
- Council strategy – how the local authority intends to realise benefits from drone technology.
We advise a modern local policy that sets out a ‘total airspace approach’ and includes proportionate local measures outside expanded flight restriction zones to ensure resident and wider public safety. A council must understand that there will be a need for special exemptions and/or permissions which, it may grant in exceptional circumstances. Where these will apply, they will primarily relate to public safety activities and accredited organisations.
Potential risks for local authorities
Our research highlights there is a general lack of understanding of the regulations and this is reflected in the lack of accurate and up to date policy across the local government sector. There are a number of very active social media groups within the drone community that share inconsistencies and misinformation provided by local authorities and organisations such as the National Trust and English Heritage. We believe it is only a matter of time before there is a test case challenging a local authority. Such a challenge would present the following risks to the local authority:
1. Significant legal costs in defending a challenge by judicial review. Legal consequences of a breach of the ultra vires rule are significant and there is much case law on this. A person who is aggrieved by a local authority’s decision may apply to the court for judicial review of the decision under Part 54 of the Civil Procedural Rules. The court may grant a successful applicant one of the following remedies against a local authority:
(a) An order quashing an ultra vires decision;
(b) An order (a prohibiting order, mandatory order or injunction) stopping an ultra vires action that is about to take place;
(c) An order compelling the local authority to perform a public duty (a mandatory order or injunction);
(d) An order making the legal position clear (a declaration).
2. Risk of other remedies available in ordinary private law High Court proceedings, namely injunctions, declarations and damages;
3. Significant and substantial negative PR.
It is abundantly clear that local authorities have a great opportunity to take advantage of an evolving legal position and also be much better informed. Councils can provide a much safer environment for people that enjoy open spaces and for people that enjoy flying drones. The legislative burden is increasing at an alarming rate, which means that local authorities must be able to resource accordingly. This can be expensive and time consuming. By using a conjoined policy document that is up to date and consistent with changing regulations, local authorities will substantially mitigate the risks of legal challenge.
Richard Ryan is a barrister and Chris Gee is MD Agilio and Trustee for Safer Drones.
Richard is a practicing barrister and also a commercial UAV pilot (PfCO). Richard worked for the CAA UAS Unit and was responsible for all complex drone permissions in the UK from land up to space and inspected and audited drone pilots and National Qualified Entities, the first person in the UK to do so. Richard provides cogent advice on drone law to many different stakeholders in the UK and abroad.
Chris is a commercial UAV pilot (PfCO), programme manager and management consultant with 25 years’ experience helping organisations innovate through new technology including drones. He has worked extensively in local government and also has manned aviation experience having previously held a pilot’s licence.