Civil Aviation Authority (CAA) Archives - Blakistons

A Constructive Outcome for Safer Skies: What the Client’s Case Means for UK Drone Pilots

admin.richard — Thu, 06 Nov 2025 17:53:49 +0000

By Richard Ryan, barrister and drone lawyer

Constructive outcome, practical lessons. A technical proximity breach was confirmed, a more serious allegation was dismissed, and there are clear takeaways that raise standards on evidence, cooperation and public safety.

Outcome at a glance

Count 1 (conviction): Operating an unmanned aircraft close to the site of an ongoing emergency response — Air Navigation Order 2016 Articles 265B(3), 265B(5)(j) and 265F(3)(c) (reflecting UAS.OPEN.060(3)).
Count 2 (dismissed): Obstructing or hindering emergency workers — Emergency Workers (Obstruction) Act 2006, sections 1 and 4 — no case to answer.
Sentence: £300 (reduced from £2,500). Deprivation order refused — the client’s equipment will be returned.

Competence, cooperation and public interest flying

The client is an experienced operator with hundreds of hours and thousands of flights, combining sound aviation literacy with routine work around public interest incidents. On the day in question, the client used aircraft tracking tools and air band monitoring, maintained a conservative standoff where no formal cordon existed, and landed promptly when requested by police. This was a measured and safety first response in a dynamic setting.

Lesson 1: Telemetry clarity

When presenting flight data, clarity matters. Plot the flight path with a thin, precise line so the base map remains legible, including fences, road edges, cordons and measured standoffs. A thick line can obscure the very features that prove separation.

Keep a clean thin line map and a forensic overlay with timestamps for take off, orbit points, return to home and landing, plus measured distances to fixed features.
Use a thin line that clearly shows accurate telemetry when placed on a map, not a thick line that obscures part of the map.

Lesson 2: Plan for seizure and understand where DJI DAT lives

High fidelity DJI DAT logs are stored on the aircraft and typically require connecting the drone to a computer to extract. If a drone is seized by police, immediate access to those DAT files is difficult.

Build redundancy: back up app and controller logs after each flight, use screen recordings of the flight user interface, and capture independent stills or video.
For sensitive assignments, consider periodic DAT offloads in advance.

Five straightforward commitments

Thin line telemetry as the default for mapping outputs.
Evidence resilience: dual path logging (logs plus screen capture) and periodic DAT offloads.
Proportionate communications near emergency activity where appropriate.
A simple one page ops note on every job covering airspace, standoffs and abort triggers.
Calm, courteous engagement with officers, with a record of powers used and a property schedule if equipment is seized.

Technical reference: cross motorway separation

To contextualise the judge’s description (opposite side of a six lane motorway plus hard shoulder plus verge), the following uses standard UK dimensions.

Assumptions from UK highway standards

Lane width (motorways): 3.65 m per lane (DMRB CD 127). [1]
Hard shoulder width: 3.3 m (National Highways). [2]
Central reservation (median): assume about 3.0 m (DMRB derived guidance). [3]
Verge: varies by site; on trunk roads, about 3.0 m is common. Use 2.0 to 3.0 m to bracket reality. [4]

Baseline components

Six lanes = 6 x 3.65 = 21.90 m. [1]
Two hard shoulders = 6.60 m. [2]
Central reservation (median) about 3.00 m. [3]
Verge per side about 2.0 to 3.0 m. [4]

Real world lateral separation (verge to verge)

Distance = 6 lanes + 2 x hard shoulder + 2 x verge + median

With 2.0 m verges (conservative): 21.90 + 6.60 + 4.00 + 3.00 = 35.50 m
With 3.0 m verges (typical): 21.90 + 6.60 + 6.00 + 3.00 = 37.50 m

Figure to use: about 37.5 m horizontal separation verge to verge (typical). Lower bound: about 35.5 m if verges are unusually narrow.

Lean reading (narrow phrasing)

Six lanes plus one hard shoulder plus one verge (omitting the median and the opposite side shoulder and verge):

21.90 + 3.30 + (2.0 to 3.0) = 27.2 to 28.2 m

This underestimates the physical cross section that most operators and engineers would use.

Add altitude for slant distance

If height is h, the slant range is sqrt(lateral^2 + h^2).

With 37.5 m lateral: 48.0 m at 30 m AGL, 70.8 m at 60 m, 125.7 m at 120 m.
With 35.5 m lateral: 46.5 m at 30 m, 69.2 m at 60 m, 124.2 m at 120 m.

Practical effect: even before adding any field offset inside the field beyond the verge, cross motorway separation is around 36 to 38 m. Any field offset adds to that figure. Slant range increases further with altitude.

Standards: DMRB CD 127, National Highways, TII DN GEO 03036, Transport Scotland.

Bottom line

This is a constructive outcome. The most serious allegation fell away, the fine is modest, and the client retains their equipment. More importantly, the experience is being used to lead on best practice: clearer telemetry, stronger data resilience and exemplary on scene conduct, supporting emergency services, informing the public and keeping UK skies safe.

About the author

Richard Ryan is a Barrister (Direct Access), Mediator and Chartered Arbitrator based in the UK, specialising in drone and counter-drone law, aviation regulation, and complex commercial disputes. He advises operators, insurers and public bodies on SORA/AAE approvals, BVLOS programmes, privacy/data governance, and risk allocation across the drone ecosystem.

This post is for general information only and is not legal advice.

The post A Constructive Outcome for Safer Skies: What the Client’s Case Means for UK Drone Pilots appeared first on Blakistons.

Rapid Briefing: “UK Drone Regulations and Net Risk” (PwC, Sept 2025) — Issues, Gaps, Opportunities

admin.richard — Tue, 28 Oct 2025 08:05:36 +0000

“`By Richard Ryan, barrister and drone lawyer

What the paper actually shows (evidence you can cite)

Insurers say risk is intrinsically low; very few third-party injury claims; risk has reduced over the decade with better tech/training. (pp. 9–11)
UK’s ‘zero-risk + case-by-case’ stance hasn’t produced safer skies than more prescriptive/permissive regimes (US/EU/Canada/Singapore); it has delayed progress. (pp. 12–13)
Net-risk lens: drones remove more risk than they introduce (e.g., falls from height, confined spaces, helicopter exposure). (pp. 14–18)
BVLOS doesn’t materially increase risk where well-managed; biggest predictors are location and safety management. (pp. 10–11, 19–22)
Incident data 2022–24: commercial operations show zero fatalities across UK, US, EU, Canada, Singapore; only a handful of serious injuries. (Appendix + country sections, pp. 55–61)
SORA friction/cost: UK SORA application at SAIL II is £3,495; mitigations/AMC still qualitative ? “OSC-style” uncertainty persists. (p. 35)
“Picking winners”: five BVLOS priorities (emergency response, powerlines, maritime SAR, rail, crop spraying). (pp. 6, 25–33)
Policy levers: shift to digital PDRAs for repeatable, low-risk scenarios; reuse prior approvals; model on EU PDRAs/Canada’s lower-risk BVLOS. (pp. 36–37; Appendix 1)
Emergency services gap: the old standing exemption (E4506) lapsed; routine BVLOS now hard to get—BTP resorted to State Aircraft rules. (p. 27)
Comparative table (risk models, UTM status, Remote ID, scale-up reality) explains why the UK feels “high-friction”. (p. 52)

Regulatory & enforcement issues to flag (and build matters around)

Incoherent risk calibration: the UK treats many Specific-category ops as high-risk despite cross-market low incident severity and strong insurer data. (pp. 9–13, 55–57)
Process opacity & cost-burden: SORA mitigations/AMC are qualitative ? inconsistent asks; high fees despite narrow temporal/spatial grants. (p. 35)
Emergency-services capability gap: loss of E4506 creates avoidable delay/risk; forces work-arounds (State Aircraft) rather than transparent PDRA. (p. 27)
AAE not yet a permissioning tool: policy concept ? scalable authorisation path (contrast EU PDRA-G03 for linear infrastructure). (pp. 28–31, 36)
Net-risk inversions: requirements like “observer in a boat” for coastal EVLOS can increase system risk and cost vs. sensor-driven shore control. (p. 21)
Data transparency: the UK has many “record-only” entries; EU public access is patchy; hard for operators/insurers to benchmark safety cases publicly. (pp. 54–61)

Practical exposure points for stakeholders

Insurers: common declinature trip-wires—ops outside the authorisation envelope; poor log preservation; weak maintenance/firmware governance. (pp. 9–11, 35–36)
Operators/pilots: SORA drift, local land-use limitations, and fragmented permissions across linear corridors; evidence-pack discipline needed. (pp. 28–31, 35–36, 56–57)
Associations/community: need bilingual templates/FAQs and incident learning loops; emphasise the airspace vs land-use distinction to reduce friction. (inferred)
Public bodies (blue-light, MCA, NR, utilities): proven benefits blocked by bespoke approvals—strong case for sector PDRA playbooks. (pp. 26–33, 36)

What this means for drone pilots, operators, and companies

As a drone lawyer, my reading of the PwC paper is that the safety record increasingly supports predictable, rules-based authorisations, but the UK still applies bespoke processes that create delay, cost and legal uncertainty. The winners will be those who treat compliance as an operational capability, not a paperwork chore.

Implications for Drone Pilots

Documentation is defence: retain native telemetry, app/controller logs, and pre-flight risk assessments. These are crucial in insurer claims and any CAA inquiry.
VLOS/BVLOS discipline: be explicit about how VLOS was maintained (or the BVLOS mitigations used). Ambiguity here is a common enforcement and insurance pain point.
Privacy on site: where people are identifiable, prepare a simple lawful-basis note and signage plan; it reduces complaint/escalation risk significantly.

Implications for Operators

Align your OA/ops manual with SORA and AAE logic: show how mitigations reduce both air and ground risk. Clear mapping cuts questions and accelerates approvals.
Design for repeatability: build PDRA-ready evidence packs for your most common jobs (e.g., rail/powerline corridors) so each new mission is a variation, not a reinvention.
Insurance resilience: standardise maintenance/firmware baselines and battery care logs; many declinatures stem from gaps here, not from the incident itself.
Contracts that reflect reality: flowing down responsibilities to subcontractors (airworthiness, data protection, incident reporting) reduces exposure and smooths procurement.

Implications for Drone Companies & Enterprise Users

Board-level accountability: appoint a named senior responsible owner (SRO) for UAS operations with decision logs—critical if decisions are later examined in court or by regulators.
Data governance as an asset: implement DPIAs where warranted, role-based access to imagery, retention/deletion schedules, and breach protocols. This increases tender scores and reduces enforcement risk.
Public value narrative: quantify how drone tasks remove traditional risks (work at height, road possessions, helicopter hours). This “net-risk” case supports proportional, scalable permissions.

Where legal support helps, assists, and mitigates

Approvals & permissions: structuring SORA/AAE applications with proportional mitigations, re-using prior evidence, and narrowing scope to reduce fees and conditions.
Policy & appeals: challenging irrational or net-risk-increasing conditions; seeking clarifications; and preparing proportionate alternatives that the regulator can accept.
Privacy & data: lawful-basis memos, DPIAs, signage/LLN templates, and response playbooks for complaints or subject access requests.
Insurance & claims: coverage mapping, notification strategy, and evidence preservation to avoid declinature; subrogation prospects where third parties contributed to loss.
Contracts: allocating risk cleanly across clients, operators and subcontractors (indemnities, limitation, IP/data ownership, incident reporting).

Bottom line: the sector is safe and maturing. Those who can demonstrate their risk controls, evidence compliance, and standardise approvals will grow fastest—with fewer legal shocks along the way.

Talking points for meetings & panels

Same safety, slower UK growth: insurers and incident data show low intrinsic risk—authorisations should be predictable and prescriptive, not bespoke. (pp. 9–13, 36–37)
Digital PDRAs now: for repeatable BVLOS (powerlines/rail/SAR/maritime/agri)—reuse evidence from prior OSCs; mirror EU PDRA/Canada logic. (pp. 25–33, 36)
Emergency drones need an emergency rulebook: the E4506 gap is pushing forces into State Aircraft work-arounds. (p. 27)
Incident reality: zero fatalities in 2022–24 across major markets; claims are mainly minor property/equipment—calibrate conditions accordingly. (pp. 55–61; pp. 9–11)

“`

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When “Just a Minute” Becomes BVLOS: Legal Lessons for Drone Operators from CHIRP’s September 2025 Reports

admin.richard — Mon, 27 Oct 2025 19:14:43 +0000

By Richard Ryan, Barrister & Drone Lawyer – practical takeaways, not legal advice for your specific situation.

Why this matters

CHIRP’s Drone/UAS FEEDBACK Edition 14 (September 2025) curates incidents that look ordinary until you view them through a law-and-liability lens:
three model-flying events that drifted into unintentional BVLOS, a Mini 2 injury at a carnival, a controller or app freeze mid-mission,
a fatigue-tinged flight that autolanded at 20 percent battery into a tree, and an RTH climb toward powerlines. Each contains avoidable legal exposure
that you can mitigate with better planning, clear roles, and a few settings changes.

The incidents, in plain English – and what the law expects

1) Unintentional BVLOS x3 (BMFA community)

What happened: One EDF jet lost power from a poor solder joint after a user modification; two other flights went BVLOS when sea fog or thermal lift arrived faster than forecast.
Legal frame (UK): The Drone and Model Aircraft Code requires direct VLOS and the ability to determine orientation at all times. If you cannot do that, the flight is non-compliant.
Practical fix: Treat post-purchase alterations as airworthiness-significant and inspect them before each flight. Use BMFA’s SWEETS pre-flight. Adopt a simple “radial scan” habit: eyes out (aircraft and airspace) then quick glance down (controller or map) then eyes out again.

2) Nottingham Carnival injury (Mini 2)

What happened: A minor pressed “land” while the supervising adult was distracted; the drone struck another child who was sitting on someone’s shoulders. Police confiscated the aircraft. No Operator ID was displayed and it was flown over a crowd.
Legal frame (UK): Never fly over crowds or assemblies of people. Label the aircraft with a visible Operator ID. Where injury occurs, expect scrutiny under general endangerment provisions.
Practical fix: Establish a safe TOLA (take-off and landing area) away from the crowd. Use aviation-style handover phraseology: “You have control” / “I have control”. Keep controller audio alerts audible. Supervision of minors must be active and informed by the Code.

3) “My app froze” (Mavic 4 Pro + RC2; 87-waypoint mission)

What happened: Switching to Map View mid-mission froze the Fly app. The pilot used the hardware RTH button to recover the aircraft. Possible overload from running a large waypoint mission while screen-recording.
Legal frame: You remain responsible for safe operation even when the UI hiccups. The defensible question is whether your procedures anticipated foreseeable failures, such as hardware RTH muscle memory, function checks, and reboot-on-the-ground policies.
Practical fix: For long waypoint jobs, test the profile without screen-recording first. Pre-brief the hardware RTH action. Use a visual observer if you will be heads-down.

4) Fatigue and stress (power-line inspection)

What happened: The pilot became disoriented, lost VLOS about 1,700 ft from home, hit 20 percent battery, and, unaware that “land at 20 percent” was set, descended into a tree despite pressing RTH.
Practical fix: Know and brief your low-battery action (RTH vs auto-land vs hover) in the Operations Manual. Use two-crew where terrain or workload increases disorientation risk. Remember UK requirements to maintain VLOS and orientation at all times.

5) RTH vs powerlines (mapping mission)

What happened: An automated flight went off-nominal. On RTH, the aircraft likely contacted an obstacle while climbing. CHIRP notes the perception trap of judging wire clearance at range and reminds that wires sag mid-span.
Practical fix: Set RTH altitude locally before each flight, above towers, tree lines, cranes, and powerlines. Do not rely on obstacle avoidance to detect thin wires. Pre-flight, measure line heights relative to the home point and add margin for sag and wind.

Five legal pillars these cases keep hitting

VLOS is non-negotiable. Keep the aircraft in direct sight and be able to tell its orientation, with a full view of surrounding airspace.
Crowds are out of bounds. “Assemblies of people” are defined by the inability to disperse quickly, not by a headcount.
Operator ID labelling is strict. Visible, legible, on the airframe. Sub-250 g camera drones typically still require an Operator ID.
Endangerment provisions are broad. If someone is endangered or injured, regulators may consider reckless or negligent operation.
Automation is not absolution. You own the outcomes of RTH, low-battery actions, waypointing, and controller limits.

Turn the lessons into a defensible playbook

A. Pre-flight and design for failure

Modified anything? Treat user soldering, adapters, and third-party leads as risk-relevant. Inspect that joint every flight until replaced with a proven assembly. Log the check.
Weather is slippery. Do not rely on one app. Triangulate forecasts. Identify abort gates if visibility closes in (fog, showers, glare). Use SWEETS at the field.
Controller workload. For heavy waypoint missions, disable screen-recording unless proven stable. Rehearse hardware RTH and app-independent control.

B. RTH and battery settings you can defend

Set RTH altitude locally, every time. Clear known obstacles and powerlines. Consider Advanced RTH where available.
Know low-battery behavior. Document thresholds in the Operations Manual, brief them to the crew, and confirm on the controller before take-off.

C. People, roles, and sterile cockpit

Observer next to you for heads-down tasks, with real-time verbal coordination.
Minors at the sticks? Only with active oversight, formal handovers, and never within or over a crowd.
Events and assemblies. Create buffer zones and safe TOLA sites. If a client insists on crowd-proximate shots, the safest and most defensible answer is often no without appropriate authorization and controls.

D. Evidence and reporting (preserve the facts)

After any occurrence, preserve flight logs, app caches, screen recordings, controller settings, and note battery and RTH configuration.
Consider confidential safety reporting to CHIRP in the UK (and NASA ASRS in the U.S.) to help the community learn without blame.

Bottom line

The risk here is ordinary: a conversation at the wrong moment, fog rolling in, a buried setting, an RTH altitude that did not clear wires,
or a controller pushed too hard. The Code’s core duties – VLOS, no crowds, proper ID labelling,
know your automation, and keep records – are your best legal shield when something goes wrong.

BMFA SWEETS: a quick pre-flight check

S — Sun: position now and later; glare; keep VLOS; avoid flying through the sun.
W — Wind: direction/strength/turbulence; safe areas for forced or dead-stick landings.
E — Environment: visibility (rain, mist, fog, fading light), people nearby, RF risks, space to fly a full circuit.
E — Emergencies: plan what you will do if there is a malfunction or airspace incursion; confirm failsafes.
T — Transmitter control: local Tx control and frequencies; correct model; trims/rates; Tx power/voltage.
S — Site rules: club rules, local byelaws, no-fly zones, height and airspace limits.

Note: some older guides use “Eventualities” for the first E. Meaning is the same: think ahead about what could happen and how you will handle it.

This article is general information, not legal advice. If an incident has occurred, speak to counsel at Blakiston’s Chambers before making statements to third parties and preserve all electronic evidence immediately.

Credit and resources

Based on incidents and analysis in CHIRP Drone/UAS FEEDBACK Edition 14 (September 2025).
BMFA pre-flight mnemonic SWEETS: handbook.bmfa.uk/13-general-model-safety
UK Drone and Model Aircraft Code: register-drones.caa.co.uk
Report a safety concern to CHIRP (confidential): chirp.co.uk/aviation/submit-a-report

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What the UK Drone Industry Can Learn from EASA’s Adoption of SORA 2.5

admin.richard — Tue, 30 Sep 2025 10:57:46 +0000

By Richard Ryan, Barrister & Drone Lawyer •
30th September 2025

Introduction

On 29 September 2025, the European Union Aviation Safety Agency (EASA) published ED Decision 2025/018/R, updating the Acceptable Means of Compliance (AMC) and Guidance Material (GM) to Implementing Regulation (EU) 2019/947. This update introduces the European version of the Specific Operations Risk Assessment (SORA) 2.5, developed by the Joint Authorities for Rulemaking on Unmanned Systems (JARUS).

Although the UK has left the EU regulatory framework, these developments are highly relevant. UK operators, manufacturers, and regulators can learn much from how EASA is simplifying compliance, clarifying roles, and promoting harmonisation across Member States.

What Changed under SORA 2.5?

Simplification of procedures: Ambiguities from earlier SORA versions have been removed, making it easier for operators and authorities to understand their obligations.
Clarity of roles: Responsibilities are now more clearly divided between operators, designers, and manufacturers. For example, design verification reports (DVRs) from EASA are required at SAIL IV, and type certification is required at SAIL V and VI.
Terminology alignment: EU-specific terms replace JARUS wording. For instance, “EVLOS” has been dropped in favour of “BVLOS with airspace observer”.
Containment requirements: Refined criteria for ground risk buffers and adjacent ground areas, particularly relevant for BVLOS and urban operations.
Flexibility for competent authorities: NAAs can use direct assessment, recognised entities, or qualified entities to review compliance.
Removal of weak cybersecurity rules: EASA stripped out JARUS’s cybersecurity provisions, deeming them disproportionate, but stressed that vulnerability assessments remain best practice.

Lessons for the UK CAA

Consistency and clarity – EASA has responded to industry feedback by clarifying operator versus manufacturer responsibilities. The UK’s guidance could benefit from similar precision, particularly in BVLOS authorisations.
Streamlining approvals – The two-phase SORA process (Phase 1 for risk identification, Phase 2 for compliance evidence) allows operators to obtain early regulatory feedback. This approach could make the UK’s OSC process faster and more predictable.
Population density mapping – EASA now recommends more accurate, dynamic maps to avoid over- or under-estimating risk in commercial and recreational areas. The UK could adopt a similar model, especially for urban drone delivery corridors.
Terminology alignment – Dropping “EVLOS” in favour of “BVLOS with AO” reflects operational reality and removes confusion. The UK should consider whether maintaining unique terminology helps or hinders international harmonisation.
Cybersecurity gap – By removing JARUS’s rules but encouraging vulnerability assessments, EASA has left space for proportionate, risk-based security. The CAA could similarly mandate cybersecurity risk assessments in line with wider aviation resilience standards.

Best Practice for UK Drone Pilots and Operators

Adopt SORA 2.5 methodology voluntarily – Even though the UK hasn’t formally adopted it, operators preparing risk assessments will benefit from aligning with European standards, especially if seeking approvals abroad.
Keep clear records – Maintain compliance matrices and comprehensive safety portfolios (CSPs) as outlined in SORA 2.5. This not only supports OSC applications but also protects operators in audits and insurance claims.
Use accurate population data – Don’t rely solely on outdated maps; supplement with local knowledge, real-time data, or site surveys to avoid underestimating risk.
Plan robust contingency procedures – Ensure abnormal and emergency procedures are well defined, tested, and rehearsed with crew. The new focus on containment means that “fly-away” risks must be demonstrably controlled.
Stay ahead on cybersecurity – Even though not mandated, conduct vulnerability assessments for command-and-control links and data storage. Cyber weaknesses could undermine insurance and liability cover.

Conclusion

EASA’s adoption of SORA 2.5 is a significant step towards regulatory clarity and harmonisation across Europe. The UK CAA should take note: simplifying authorisations, clarifying roles, and embracing proportionate risk-based approaches would strengthen the UK’s position as a leader in drone regulation.

For operators and pilots, the message is clear: best practice means anticipating international standards, not just meeting the minimum domestic requirement.

At Blakiston’s Chambers we advise drone operators, manufacturers, and service providers on all aspects of UK drone law, including airspace rights, regulatory compliance, and litigation risk. If your business is concerned about trespass or overflight liability, our team can help.

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Soaring Ahead or Stuck in the Past? What the CAP 3040 Second Edition Means for Your Drone Operations

admin.richard — Wed, 11 Dec 2024 17:35:43 +0000

Soaring Ahead or Stuck in the Past? What the CAP 3040 Second Edition Means for Your Drone Operations

By Richard Ryan, Drone Lawyer

As a UK drone lawyer, I’ve seen firsthand how tricky it can be to navigate the ever-changing skies of unmanned aviation regulation. The Civil Aviation Authority’s (CAA) “Unmanned Aircraft Operations in an Atypical Air Environment (AAE): Policy Concept” (CAP 3040) is no exception. After the initial excitement of the First Edition, many in the drone community were eagerly awaiting the Second Edition, hoping for clarifications, improvements, and a more future-focused framework.

What’s New?
At a glance, the changes between the First and Second Editions might seem minimal—just a tweak to the reference for ADS-B (Automatic Dependent Surveillance-Broadcast) equipment, rolling back from RTCA DO-282C to the older DO-282B standard. But that’s not a small footnote. If you’ve been prepping your drone gear to meet DO-282C standards, you may now be left wondering why the rug’s been pulled from under you.

The Tech Twist:
DO-282B is an earlier standard for ADS-B performance, while DO-282C was supposed to reflect newer technology and real-world lessons learned. Reverting to an older standard could mean extra work or unexpected costs if you’ve already made purchases or adapted your systems for DO-282C. It also raises questions about whether the policy is truly forward-looking, or inadvertently stifling progress at a critical time in UK drone innovation.

Still Flying Through Foggy Regulations:
The Second Edition still leaves operators wrestling with a few nagging uncertainties:
1. Defining ‘Atypical Air Environment’: The document still lacks a crystal-clear definition of AAE. Without a firm legal baseline, you might struggle to know if your flight qualifies—adding confusion to your operations and potentially slowing down approvals.
2. Single Site Limitations: The CAA’s recommended approach of applying for just one site per Operational Authorisation (OA) remains. This can create unnecessary hurdles for those looking to scale up and serve multiple clients or routes.
3. Extra Admin, Less Innovation: Requirements like routine NOTAM submissions or intricate Electronic Conspicuity (EC) licensing haven’t been simplified. For many operators, these processes feel more bureaucratic than beneficial, potentially discouraging new entrants and curbing the industry’s growth.

How to Navigate This Airspace Turbulence:
• Stay Agile: Keep tabs on CAA communications and industry forums. If the CAA shifts requirements again, you’ll want to pivot quickly.
• Ask for Clarity: Don’t hesitate to reach out to uavenquiries@caa.co.uk for guidance, especially if you’ve already invested in tech aligned with DO-282C.
• Industry Collaboration: Connect with fellow operators, manufacturers, and drone associations. Shared experiences help identify practical solutions and give your concerns more weight when approaching regulators.
• Professional Advice: A drone-focused legal expert can help you interpret the Second Edition’s nuances, reduce compliance guesswork, and ensure you’re not sinking costs into the wrong standards.

Charting a Better Flight Path: While the Second Edition’s updates may feel like a step back, there’s still hope. The CAA emphasizes that CAP 3040 is an evolving concept. By voicing concerns, sharing data, and staying engaged, the drone community can help steer policy revisions that balance safety, innovation, and economic growth.

The Bottom Line:
The CAP 3040 Second Edition is a reminder that regulatory frameworks are works in progress. This can be frustrating, yes—but it’s also an opportunity. Operators willing to adapt, learn, and advocate for sensible changes can help shape the UK’s drone landscape into one that truly welcomes innovation. Keep your engines running, your channels of communication open, and your ambitions high. Together, we can ensure that tomorrow’s regulations are as cutting-edge and future friendly as the drone technology they’re meant to guide.

About the Author
Richard Ryan is a direct access barrister at Blakiston’s Chambers, specialising in drone law and unmanned aircraft regulation. Leveraging extensive knowledge of emerging aviation technologies and the UK’s complex regulatory landscape, Richard Ryan provides pragmatic guidance that empowers clients to navigate compliance challenges, secure operational approvals, and seize opportunities in the rapidly evolving drone sector. Known for translating intricate legal frameworks into actionable strategies, Richard Ryan is dedicated to shaping the policies that will define the future of unmanned aviation in the UK.

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Transforming UK Airspace: A New Era for Drones and Aviation with NATS OpenAir

admin.richard — Tue, 26 Nov 2024 13:01:36 +0000

Transforming UK Airspace: A New Era for Drones and Aviation with NATS OpenAir

By Richard Ryan, Drone Lawyer

The skies over the UK are on the verge of a transformative shift, thanks to the ambitious NATS OpenAir initiative. Designed to integrate drones and advanced air mobility (eVTOLs) into shared airspace alongside traditional aircraft, the proposal promises innovation, efficiency, and safety. But as with any grand vision, the devil is in the detail.
Here’s an in-depth look at what the OpenAir initiative is getting right, where there are gaps, and how it can evolve to meet the needs of all airspace users.
________________________________________
1. Prioritising Data Privacy and Ownership

One of the most valuable resources in aviation is data. For drone operators, who depend on real-time information about flight paths, weather, and airspace restrictions, access to reliable data is critical. However, the OpenAir proposal is light on specifics about who owns the data and how privacy will be protected.
Without clear protections, drone operators might worry about their data being exploited—whether commercially or in ways that jeopardise their competitive edge.

The Fix:
OpenAir must adopt a clear data privacy framework. Operators should retain ownership of their data, with mandatory anonymisation for any information shared beyond essential safety and operational use. Only the bare minimum of data required for regulatory compliance should be shared, and stringent safeguards must prevent its misuse.
________________________________________
2. Keeping the Playing Field Fair

OpenAir is envisioned as a centralised hub for managing UK airspace, which sounds great—until you consider the potential impact on smaller players. Consolidating services under one entity like OpenAir might inadvertently stifle competition among Uncrewed Traffic Management Service Providers (UTMSPs).

The Fix:
To level the playing field, OpenAir should adopt open standards that allow seamless third-party integration. Smaller UTMSPs must be supported, not sidelined. Clear rules around equitable access to data and services will ensure innovation thrives without creating monopolies.
________________________________________
3. Setting Realistic Timelines

Integrating drones and eVTOLs into shared airspace isn’t a simple task. OpenAir’s proposed rollout timeline—beginning pilots in 2025 and achieving full deployment by 2028—might be overly ambitious, especially given the complexity of regulatory approvals and the need for robust infrastructure.

The Fix:
A phased approach with realistic benchmarks is the way forward. OpenAir should focus on pilot projects in key areas where demand is highest (e.g., urban delivery drones or emergency medical services). This would provide valuable data to refine the system while reducing the risk of rushed implementation.
________________________________________
4. Managing Costs for Drone Operators

OpenAir’s “user pays” principle makes sense in theory—those who use the airspace services should cover the costs. But smaller operators, such as local delivery drone companies, could be disproportionately affected by high fees, potentially pricing them out of the market.

The Fix:
Introduce tiered pricing. Small operators should pay less, at least during the initial phases. Alternatively, subsidies or credits could be offered to early adopters, ensuring fair access while fostering adoption across the board.
________________________________________
5. Addressing Legal Grey Areas

OpenAir aligns with the UK’s Airspace Modernisation Strategy, but its relationship with existing regulations like CAP 722 (which governs drone operations) needs to be crystal clear. Ambiguities in compliance requirements could delay approvals or lead to legal disputes.
Similarly, liability concerns loom large. If there’s a system outage or data error, who’s responsible for the fallout? Drone operators? OpenAir? The CAA? NATS? DfT?

The Fix:
OpenAir must explicitly state how its services integrate with CAP 722, especially for critical areas like Beyond Visual Line of Sight (BVLOS) operations. As for liability, service agreements must clearly define responsibilities, ensuring all parties—operators, OpenAir, and regulators—understand their obligations.
________________________________________
6. Building Trust Through Transparency

For OpenAir to succeed, trust is key. Stakeholders—including drone operators, regulators, and public service agencies—must feel confident in the system’s fairness and security.

The Fix:
Establish an independent advisory board with representatives from all key groups, including Blakiston’s Chambers! This board would oversee the rollout of OpenAir, ensuring transparency and accountability. Regular public updates and feedback sessions would further build trust and address concerns early.
________________________________________
7. Looking to the Future

The potential of OpenAir is undeniable. By creating a unified platform for managing UK airspace, it could unlock opportunities ranging from efficient logistics to life-saving medical deliveries. But to truly succeed, OpenAir must:
1. Prioritise data privacy and ownership.
2. Ensure fair competition for all service providers.
3. Adopt a phased, realistic rollout plan.
4. Keep costs manageable for smaller operators.
5. Align with existing regulations like CAP 722.
6. Address liability concerns upfront.
7. Foster trust through transparency and stakeholder engagement.

The skies above us are changing, and with thoughtful planning, OpenAir could make the UK a global leader in integrated airspace management. But to get there, it must balance ambition with practicality, ensuring the system works for everyone—from global eVTOL operators to local delivery drones.
________________________________________
What do you think about the OpenAir proposal? Share your thoughts, especially if you’re a drone operator or part of the aviation industry. Your feedback could shape the future of our skies!

About the Author
Richard Ryan is a UK-based barrister and drone law expert with over 20 years of legal experience. Specializing in regulatory, operational, and safety challenges, Richard advises defence companies, regulatory bodies, and government agencies on the complexities of UAS operations. A former advisor to the UK Civil Aviation Authority and the House of Lords’ AUTMA committee, Richard is currently pursuing a PhD at Cranfield University, focusing on the legal implications of drone integration into global airspace.
Richard combines his legal expertise with a deep understanding of defence operations, having served in the British Army, including deployments to Iraq and Afghanistan. His insights bridge the gap between operational realities and legal requirements, ensuring clients navigate the rapidly evolving world of drone technology with confidence.

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Drone Operators: Navigating the Legal Landscape of Trespass

zeroabove — Wed, 25 Sep 2024 11:38:53 +0000

With the growing use of drones in commercial operations, the recent Anglo International Upholland Ltd v Wainwright [2023] case sets an important legal precedent for drone operators. The High Court ruled that flying drones over private property can constitute trespass, especially when used to capture images that facilitate unlawful activity, such as trespass.

This case highlights the complexity of balancing Section 76 of the Civil Aviation Act 1982 with trespass laws. Section 76 offers protection when drones fly at a “reasonable height,” but this case found that using drones for unauthorised photography over a site nullified such protection. Additionally, the court ruled that the very act of flying drones for unlawful purposes could constitute trespass, even without exact evidence on flight height.

For drone operators, this ruling underlines the need for compliance with air navigation laws, obtaining property owner consent, and carefully considering the purpose and operation of drone flights. As the sector evolves, it’s crucial to stay updated with legal developments to avoid potential liability.

Key Takeaways:

Section 76 protections may not apply if drones are used for improper purposes.
The court is increasingly willing to view drone use in trespass contexts.

Drone operators should obtain permission for flights over private property and comply with regulations to mitigate legal risks.
A list of relevant questions for the Civil Aviation Authority (CAA) in light of the Anglo International Upholland Ltd v Wainwright [2023] case:

How does the CAA interpret “reasonable height” under Section 76 of the Civil Aviation Act 1982 for drone flights over private property?
Does the CAA plan to update its guidance on drone operations to address trespass concerns post- Wainwright*?
What steps should drone operators take to ensure compliance with both air navigation laws and property trespass rules
Will there be new regulations requiring landowner consent for drones flying over private property?
How does the CAA plan to enforce penalties for drones used unlawfully over private property?
Could the CAA clarify its position on privacy violations and trespass when drones capture images without consent?
What considerations are in place for determining unlawful drone use, even if the flight does not breach flight height limits?
Is there a possibility for the CAA to introduce more stringent guidelines for recreational versus commercial drone flights regarding private land?
How should drone operators document compliance to avoid liability under both CAA regulations and civil trespass claims?
Does the CAA foresee future collaborations with property law bodies to provide comprehensive guidance on airspace use above private land?

Let’s see if the UK CAA responds… Richard Ryan, barrister

Blakiston’s Chambers – “Leading the way in drone and counter-drone law, safeguarding airspace innovation and security.”

richard.ryan@blakistons.com

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What’s relevant for Drone Operators when the drone crashes – lessons learned from Alauda Airspeeder MkII?

zeroabove — Wed, 24 Feb 2021 15:49:39 +0000

Having reviewed the 65 pages of the AAIB-25876 report in respect of the Alauda Airspeeder MkII owned by Riotplan Proprietary Limited trading as Alauda Racing crash on 4 July 2019 at Goodwood Aerodrome, the following comments are relevant:

1.There is reference to the commanders flying experience in hours, which included the last 90 days and the last 28 days. Are your records up-to-date?

2. The operators Operating Safety Case (OSC) contained several statements that were shown to be untrue. What does your OSC state?

3. In this case the CAA did not meet the operator or inspect the UA before the accident flight. Why not invite the CAA to inspect your platform so that you have it on record?

4. The CAA were not present at the test flight. Why not invite the CAA to attend the test flight?

5. The UA sustained damage to its landing gear as a consequence of loss of power on a test flight the day before the accident. Under the regulations, the OSC and the exemption provided by the CAA, this was supposed to have been reported, but was not. If in doubt, report?

6. Observing on the day in question, were two members of the CAA’s UAS unit, who were involved in assessing the operator’s application for exemption.

7. At the CAA UAS unit the section lead was a signatory on the exemption and he joined the CAA in May 2018. There have been numerous questions on resources that pertain to the CAA UAS unit. This is further endorsed by report which states “the CAA stated that the level of resources available meant it was not possible for the UA sector team to follow up every exemption.”

8. The CAA asked the Australian Civil Aviation Authority for further information, which does not appear to have been provided. However, the AAIB did ask CASA, and some information was provided. Does this mean that regulators will only correspond in the event of a serious incident? This is certainly going to become much more relevant for those drone operators that are operating in EU jurisdictions and how the EU intends to harmonise information in the future in order to allow drone operators to fly in different jurisdictions when qualified in another. It will be interesting to see how the UK intends to accept drone operators from the EU based upon UK regulations as these regulations may diverged in the future;

9. If you have a number of transmitters as part of your OSC that relate to redundancy, don’t leave them in the workshop!

10. The AAIB will appoint experts to examine certain aspects of the UA. In this case, experts were used to examine the circuit boards for compliance and specialist video forensic examiners using photogrammetry (interestingly from video, the expert was able to determine the UA’s heading, ground speed and altitude);

11. The AAIB compared this UA’s manufacture to EASA’s Special Conditions that relate to gliders with electric propulsion units and associated high-voltage batteries. In the event that there is an absence of regulation, comparisons will be made to other similar regulatory standards;

12. When writing mitigation measures for single points of failure, be mindful that if there is a failure in radio link communication that the UA will continue flying using its last known command. Interestingly, in this case there was no consideration on the effect of a kill switch not operating and that the hazard of a “flyaway” was not considered;

13. As a drone operator, do not state that your system has a return to home function when no GPS is fitted to the UA!

14. From an operator’s perspective, the operator in this case appears to make the admission that there was insufficient time and resources to adequately test and stabilise their equipment in unfamiliar surroundings. Additionally they stated that the team were all relatively inexperienced with aviation systems, procedures, required documentation and the need to formally understand and adhere to these processes. These are significant statements that underline the culture of an organisation in its approach to safe use of equipment and its emphasis on providing necessary training. Do your teams understand the legal obligations that relate to your operational authorisation and/or OSC?

15. As of August 2020, there are over 106,000 registered UA operators in the UK and over 45,000 operators flying model aircraft. That is a significant number of operators that require relevant training and understanding of their legal obligations;

16. According to the drones reunited website, the CAA state that most flyaways occur due to battery loss, poor signal, or a technology failure and some of this is also down to pilot error. It is essential that these aspects are covered in your risk assessment;

17. There are a number of amendments with respect to safety recommendations to CAP 722, which are:

1. detailed evaluation of any unmanned aircraft systems that use on-board systems to mitigate risks with risk severity classifications of “major, hazardous or catastrophic.”
2. guidance on the planning, completion and documenting of radiofrequency surveys to reduce the risk of radio-frequency interference or signal loss when operating unmanned aircraft systems;
3. unmanned aircraft system operators that use unmanned aircraft which rely on a radiolinks to operate safety systems are to provide radiofrequency survey reports to the CAA for review;
4. guidance on how to define an unmanned aircraft systems operational and safety areas, using up-to-date maps, accurate trajectory analysis and human automated safety system reaction times to ensure a safe operation;
5. the CAA are to provide examples of unmanned aircraft system safety systems;
6. the report recommends that the CAA introduce requirements to define a minimum standard for safety systems to be installed in unmanned aircraft systems operating under an operational authorisation to ensure adequate mitigation in the event of a malfunction;
7. data recording systems which are capable of demonstrating compliance with the authorisations conditions, safe operation and the logging of any failures which may affect the safe operation of the unmanned aircraft system are to be required;
8. minimum requirements for the monitoring of high-voltage stored energy devices to ensure safety of operations are recommended;
9. operators of unmanned aircraft systems should have an effective safety management system in place prior to issuing an operational authorisation;
10. expect an inspection from the CAA when seeking an operational authorisation for an unmanned aircraft system that the CAA have not previously had experience with;
11. expect the CAA to adopt appropriate design, production, maintenance and reliability standards for all unmanned aircraft systems with aircraft capable of imparting over 80 J of energy, the same recommendation is made to EASA. It will be interesting to see how this develops within the new CE marking regime that is to apply in the future;

This is a really useful case study for drone operators to consider. It certainly is a timely reminder to make sure that your operational safety cases and/or OSC’s are up-to-date and that all the staff that are involved in your operation are cognisant of their legal obligations with respect to the regulations, the OSC and the exemption provided by the Civil Aviation Authority. If you have any questions about this or any other legal issues, please email info@blakistons.com

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Who Wins? Drone operators or Local Government?

zeroabove — Mon, 11 Nov 2019 15:49:37 +0000

1. This is a question that is increasingly being asked by operators, whereby institutions¹ are coming into conflict with drone operators. Institutions are seeking to rely upon local law in support of their established authority. This question raises several fundamental issues that concern both legal and policy issues for all stakeholders.

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…

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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