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2. The Regulator

The CAA policy in respect of this conflict of law is stated on its website as at 23 May 2018²:

“On its own, the standard permission does not give the right to fly unhindered and you will still require permission from the owner, manager or authority for the land from which the drone will be taking off and landing.  The conditions of the permission will also require that you ‘have control’ over the area you intend to use the camera-drone, and this includes any people or vehicles in the area over which you intend to fly the aircraft.  The minimum distances are stated on the permission. [emphasis added]

Before filming you need to ensure that you have:

• Permission from the Civil Aviation Authority,
• Permission from the owner, manager or authority for the land from which the SUA will be taking off and landing, 
• Control over the area you intend to use the SUA, including any persons, vessels or vehicles in the area over which you intend to operate the aircraft.

… The CAA permission for camera-drone flights only addresses the flight safety aspects of the flight and does not constitute permission to disregard the legitimate interests of other statutory bodies such as the Police and Emergency Services, the Highway Agency, local authorities (and their agents) or any other statutory body. [emphasis added]

… In order to exercise the necessary ‘control’ over a nearby public environment, it will often be necessary to contact the local authority to make suitable arrangements such as road-closures or other restrictions of access.” (note: this paragraph does not state that it is in the local authorities’ gift to grant such permission)

CAP 722³ further states at Page 34:

“3.5 A CAA permission only addresses the flight safety aspects of the flight operation and does not constitute permission to disregard the legitimate interests of other statutory bodies such as the Police and Emergency Services, the Highway Agency, Data Commission, Transport for London or local authorities.

At Page 118, Appendix A – Operational Factors for SUA Flights within Congested Areas:

At A1: … The procedures must address all relevant aspects of the congested areas they intend to operate within, taking into account any special circumstances or local conditions. Such measures may include but not be limited to: …

Utilisation of other agencies. Liaising with the Police, local authorities and other controlling agencies/organisation to gain official road closures, traffic cessation or site access restrictions.

At Page 119, Site Survey Assessment:

At A4: Typical elements of an assessment that could affect the safety of the flight would include:

local by-laws;

At Page 132, at paragraph 4.5:

Operating site planning and assessment. {Airspace operating environment considerations and procedures (e.g. Controlled Airspace), operations near other aircraft operations (local aerodromes or operating sites), operations near industrial sites or such activities as live firing, gas venting, high-intensity radio transmissions etc., local byelaw considerations, obstructions…” [emphasis added]

3. Institutions

Some of the contentious actors are contained within this document, but there are many more from discussions with operators.  Conflict arises from institutions that do not understand the law, policy or for the most part how operators (PfCO⁴ holders) become qualified.  Conflict therefore arises between Operators and local authorities or any other statutory body.  For example, organisations such as the National Trust, English Heritage, Cardiff City Council, Leeds City Council, London Ports Authority⁵ and Film London.  What has become increasingly common, is the ability of these bodies to charge a fee whilst simultaneously reviewing all the work that the CAA completes when granting a PfCO. Current aviation law, insofar as UAS is concerned, has not carved out express laws for institutions to provide clarity in relation to conflict pre-emption.

The London Ports Authority for example can justify the use of drones when a fee is paid, but exclude its use when it is not:

“Unregulated and careless drone use carries many potential hazards – ranging from risk of injury to passengers / crew on boats through to collision with oncoming vessels. There are also hazards to users of London’s busy bridges and passenger piers.

Consequently, the river is not a safe place for the routine use of any type of low flying aircraft – manned or unmanned.

…. However, there are occasions when professional film makers request use of a drone to film a particular scene or berth operators use them to survey their berth. In such instances, the request will be considered carefully… [emphasis added]

Furthermore, constraints are placed upon the operator that mirror that of the CAA’s responsibility:

“A minimum of four weeks’ notice of must be provided

2. The application should include:

• proposed time and duration of filming
• proposed location (to include a diagram showing flight area and take-off and landing site for the drone)
• risk assessment and method statement
• insurance including public liability
• details of proposed drone operating company – i.e. CAA licences⁶ / certificates; type / size / weight of UAV [sic] [emphasis added]

3. Applicant will also need to secure the following written consents for the specific date and location:

• Civil Aviation Authority
• National Air Traffic Services
• relevant riparian (riverside) local authority and landowner consent where the drone flight and exclusion area will impact on adjacent land
• Metropolitan Police filming unit (in the central London area)”

4. Cardiff City Council imposes a fee through their film office:

“Use of DRONES: Filming with a drone/UAV on council land will require special permission and will incur an additional charge of £250 per day. Please note that, in line with the guidance on flying drones set out by the Civil Aviation Authority, the use of drones is prohibited at many Cardiff locations to non-professionals.” [emphasis added]

Other councils are also seeking to rely on erroneous byelaws to prevent legitimate drone operators from filming.  The perception is that city councils are happy to grant TV companies permission as the medium of television as seen as free advertising. It is apparent from the above that the CAA is being used to justify the basis of charging a fee, when the legal position of the CAA is being misrepresented.  Operators are now utilising the power of social media to voice their concerns…

1. The National Trust⁷ go further in explaining that the legal position is unclear:

“All aerial activity above our sites is prohibited unless specific permission is granted, according to an existing byelaw. The overall legal position regarding drones is somewhat unclear and subject to forthcoming government consultation. [emphasis added]

• We do not grant permission for private flying for the following reasons; –
• CAA regulations state that drones should not be flown above or near to people⁸. As our properties often have staff living or working on site, visitors present or have open access, unauthorised drone flying is both illegal and potentially puts people at risk.
• Few non-commercial users have the correct training or permission from the Civil Aviation Authority⁹ to operate drones…
• Many drones have cameras attached and these could infringe data protection laws (filming people without permission) and potentially could contravene National Trust rules¹⁰ on commercial photography and filming.
• The presence of drones can impinge on the quiet enjoyment of our sites by other visitors and therefore potentially presents a public nuisance¹¹ risk.” [emphasis added]

7. Operators

Guidance on what is permitted given what is stipulated within Article 94 & 95 of the Air Navigation Order (ANO) 2016¹² as this is perceived as a conflict given that operators are satisfied that the flight can be conducted safely and within necessary distances.  There seems to be a reliance by institutions that any operator must be professional without defining what professional’ is.  Consider the fact that UAS operators, that have permit and have been assessed, often carry out work for TV organisations and/or fly in a wide range of conditions.  How are institutions therefore justified in assessing what is professional? The law, which regulates flying safely, is as follows:

“Small unmanned aircraft

94.— (1) A person must not cause or permit any article or animal (whether or not attached to a parachute) to be dropped from a small unmanned aircraft so as to endanger persons or property.

(2) The remote pilot of a small unmanned aircraft may only fly the aircraft if reasonably satisfied that the flight can safely be made.

(3) The remote pilot of a small unmanned aircraft must maintain direct, unaided visual contact with the aircraft sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions.

(4) Intentionally blank (articles removed)

(5) The SUA operator must not cause or permit a small unmanned aircraft to be flown for the purposes of commercial operations, and the remote pilot of a small unmanned aircraft must not fly it for the purposes of commercial operations, except in accordance with a permission granted by the CAA.

Also, recently added 94A – small unmanned aircraft; permissions for certain flights and 94B – small unmanned aircraft: Interpretation of expressions used in the definition of “flight restriction zone.”

Small unmanned surveillance aircraft

95.— (1) The SUA operator must not cause or permit a small unmanned surveillance aircraft to be flown in any of the circumstances described in paragraph (2), and the remote pilot of a small unmanned surveillance aircraft must not fly it in any of those circumstances, except in accordance with a permission issued by the CAA.

(2) The circumstances referred to in paragraph (1) are-

(a) over or within 150 metres of any congested area;

(b) over or within 150 metres of an organised open-air assembly of more than 1,000 persons;

(c) within 50 metres of any vessel, vehicle or structure which is not under the control of the SUA operator or the remote pilot of the aircraft; or

(d) subject to paragraphs (3) and (4), within 50 metres of any person.

(3) Subject to paragraph (4), during take-off or landing, a small unmanned surveillance aircraft must not be flown within 30 metres of any person.

(4) Paragraphs (2)(d) and (3) do not apply to the remote pilot of the small unmanned surveillance aircraft or a person under the control of the remote pilot of the aircraft.

(5) In this article, “a small unmanned surveillance aircraft” means a small unmanned aircraft which is equipped to undertake any form of surveillance or data acquisition.”

8. Legal Ambiguity

It is clear from the above that the level of uncertainty is unabating and indicators suggest that it is a pattern that shall continue to increase between the 4000+ operators that are registered as PfCO holders by the CAA and those institutions that are permitted to regulate local activity. As the National Trust state above, the legal position is unclear.  What is also unclear is when this position may achieve clarity for both operators and institutions.

In circumstances such as these, there are competing interests between state law, as enacted and enforced by a regulator, and the local state seeking to enact a local law for good rule and government.  It is apparent that the two are not operating in harmony in the UK and in other jurisdictions¹³. There is some degree of uncertainty around conflict pre-emption as it may be argued that local laws are directly in conflict with the ANO 2016.

Furthermore, it is apparent that institutions do not specify under what powers they are able to enact local law. Some institutions refer to the CAA and misrepresent what the law actually is and its intent.  It is trite law that institutions do not have the power to regulate airspace.  The operator perception is that this is another local government revenue generation programme as it is a disruptor from conventional filming and/or unnecessary as the airspace has no owners, just users. The operator perception is that this cannot be governed by local authorities.

The most encountered forms of quasi-legislation are: Bye-laws, codes of conduct, codes of practice, rules, orders, guidance and directions.  Quasi-legislation is either statutory or non-statutory.  There is nothing to prevent a government department or any other body from issuing guidance, codes or other documents dealing with any matter they want to regulate or control.  Ultimately, it is for the courts to decide the extent to which the courts feel able or required to inquire into how reasonable it is for the guidance to be issued at all.  Also, whether the quasi-legislation deserves deference given the way it was composed and, in particular, the range of views it represents. Quasi-legislation for the most part is drafted to be less “hard-edged” or “black-letter” than Acts or statutory instruments and are intended to be more directing the general approach than mandating precise steps to be taken.

Byelaws¹⁴ can be divided into the following categories:

• Local authority byelaws: These are made by local authorities and deal with various issues associated with a local authority’s functions;
• Countryside byelaws: These byelaws can be made by a local authority, a national park authority, or other bodies established by statute to look after a particular area;
• Transport byelaws: Under various legislation, a number of public transport operators (sometimes private companies) have the power to make bye-laws regulating conduct on public transport;
• Military land byelaws: The Secretary of State for Defence has the power to make byelaws relating to the use of land for military purposes.

Local authorities in England can enforce byelaws, which is what the CAA refer to in paragraph 3 above. A byelaw is a form of delegated legislation made under an enabling power established by legislation.  It is confirmed by the Secretary of State of the relevant government department under section 236 of the Local Government Act 1972, unless it is a byelaw of a class prescribed by the relevant Statutory Instrument. Byelaws commonly require something to be done or refrained from in a particular location and are accompanied by a sanction or penalty for non-compliance.  They have the force of law within the areas to which they apply, but they can also be challenged in the courts.

A general power for making byelaws is set out in section 235 of the Local Government Act 1972, which states that: “The council of a district and the council of a London borough may make byelaws for the good rule and government of the whole or any part of the district or borough, as the case may be, and for the prevention and suppression of nuisances therein.”

Powers to make byelaws by other government departments also include:

• Defra: town and village greens, national parks and AONB (areas of outstanding natural beauty);
• DfT: ports, harbours and airports.

In order for a local authority to make a byelaw it must:

• Establish the need for a byelaw;
• Check existing legislation;
• Find the necessary legislative power that will enable it to make a byelaw.

Before a local authority concludes that a byelaw is the best course of action, it should check all current legislation to see if the nuisance is dealt with elsewhere, that is, whether there is a need to draft a byelaw or whether there is already legislation in place to deal with it. A local authority must ensure that the proposed byelaw does not duplicate or contradict any existing legislation.

9. Conclusion

In conclusion, this paper attempts to seek clarity on what the position is between the local and state law.  Clarity in the law provides benefits and certainty to all stakeholders.  This is becoming a growing issue between stakeholders, which at this fairly “embryonic” stage in an evolving industry, provides the all stakeholders with an opportunity to positively engage with legislators.

The guidance is CAP722 is clearly not sufficient and does require further amendment. Taking the USA as an example, even with FAA regulation¹⁵, in 2017 at least 38 states were considering legislating UAS use with some states passing over 20 pieces of legislation. So far 41 states have enacted laws, which are wide and varied. The answer to the question at the top of the page is that NOBODY WINS!

References:

1. Local Authorities and other established bodies under law.
2. https://www.caa.co.uk/Commercial-industry/Aircraft/Unmanned-aircraft/Small-drones/Guidance-on-using-small-drones-for-commercial-work/
3. http://publicapps.caa.co.uk/docs/33/CAP%20722%20Sixth%20Edition%20March%202015.pdf
4. Permission for Commercial Operations granted by the CAA because of attending an NQE approved course, the CAA receiving a recommendation from the NQE and the Operator submitting an application with a compliant Operations Manual.
5. http://www.pla.co.uk/Safety/Use-of-drones/unmanned-aerial-vehicles-UAVs
6. The CAA issues a Permit, not a licence.
7. https://www.nationaltrust.org.uk/features/flying-drones-at-our-places
8. Subject to certain distance limitations, which is not referred to.
9. The CAA only issue a Permission to those that intend commercial operations, it is not understood what “few non-commercial users” refers to.
10. Rules may be viewed as irrelevant given that the NT has the power to enact byelaws.
11. Pickering v Rudd (1815) 4 Camp 219 – it would not be a trespass to pass over a man’s land in a balloon. Bernstein of Leigh v Skyviews & General [1978] 1 QB 479 – overturned the Latin maxim “Cujus est solum ejus est usque ad coelum et ad inferos” (for whoever owns the soil, it is theirs up to heaven and down to hell) rights restricted in airspace above land to such height as is necessary for the ordinary use and enjoyment of his land, actions of photography did not constitute a trespass. Excessive photography might.
12. http://www.legislation.gov.uk/uksi/2016/765/contents/made which shall change from July 2018.
13. http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx provides an interesting insight into the USA State Legislatures as it compares to Federal Law.
14. Validity of a byelaw: subject to scrutiny by the courts where (1) there is a judicial review or (2) defence of a person prosecuted for a breach of a byelaw. Courts consider the following questions: (1) is it reasonable? (2) is it certain and positive in its terms? (3) is it consistent with existing legislation? (4) is it ultra vires, that is, did the relevant authority have the power to make it?
15. Federal Aviation Administration

This article is not a substitute for professional legal advice. This article does not create an attorney/lawyer-client relationship, nor is it a solicitation to offer legal advice.

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