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How Europe’s new AI rulebook would (and wouldn’t) touch autonomous combat aircraft—and what the defence carve?outs really mean

admin.richard — Thu, 06 Nov 2025 18:28:20 +0000

By Richard Ryan, barrister and drone lawyer

How Europe’s new AI rulebook would (and wouldn’t) touch autonomous combat aircraft — and what the defence carve-outs really mean.

In Brief…

Purely military AI systems are out of scope of the EU AI Act. If an AI system is developed or used exclusively for military/defence or national-security purposes, the Act does not apply. (EUR-Lex)
Dual-use is different. If the same autonomy stack, sensors or models are marketed or used for civilian purposes in the EU (for example, civil UAS, border or law-enforcement tasks), the Act can apply — with stringent duties for “high-risk” systems. (EUR-Lex)
Real-world testing is regulated. Pre-market R&D is generally excluded, but real-world testing isn’t — it requires specific safeguards and registration. (EUR-Lex)
Foundation models (GPAI) have their own rules from 2 Aug 2025; the defence carve-out in the Act is written for AI systems, not explicitly for models. If a model is placed on the EU market generally, the provider’s GPAI obligations can still bite. (EUR-Lex)

Context: sUAS News reports that GA-ASI is showcasing its autonomous fighter portfolio (for example, YFQ-42A CCA, MQ-20 Avenger) at the International Fighter Conference in Rome, 4–6 Nov 2025. This post overlays that scenario with the EU AI Act’s rules.

1) First principles: When does the EU AI Act apply?

The Act has extraterritorial reach. It covers (i) providers and deployers in the EU, (ii) providers placing on the EU market or putting systems into service in the EU — even if they are not established here — and (iii) providers/deployers in third countries where the AI system’s output is used in the EU. (EUR-Lex)

However, Article 2(3) draws a bright line: the Act does not apply to AI systems used exclusively for military, defence or national security. It also does not apply where a system is not placed on the EU market but its output is used in the EU exclusively for those purposes. Recital 24 reiterates this and clarifies that non-defence use falls back under the Act. (EUR-Lex)

What this means in Rome:

A closed, defence-only showcase for European militaries: out of scope.
A civil-use pitch, civil flight trials, or plans to sell autonomy modules to EU civilian buyers: in scope (see the high-risk section below). (EUR-Lex)

2) The key defence carve-outs (and their limits)

Carve-out #1 — Defence/military:

“This Regulation shall not apply to AI systems … used exclusively for military, defence or national security purposes.” (Article 2(3))

Two important nuances:

Exclusivity matters. The moment an autonomy stack or sensor suite is also marketed or used for civilian or law-enforcement tasks, the defence exclusion no longer shields those non-defence uses. (EUR-Lex)
Models vs systems. The text explicitly excludes AI systems for defence; it does not create an explicit defence exclusion for general-purpose AI models. If a GPAI model is placed on the EU market, Chapter V obligations for model providers can still apply — even if one downstream customer is a defence user. (More on GPAI below.) (EUR-Lex)

Carve-out #2 — Pre-market R&D:
R&D before placing on the market is generally outside scope, but real-world testing is not. Testing in real-world conditions triggers a dedicated regime (for example, registration, time limits, informed consent or special conditions for law enforcement, incident reporting). (EUR-Lex)

Carve-out #3 — Emergency derogations (non-defence):
For exceptional public-security reasons (or imminent threats to life/health), market surveillance authorities can authorise temporary use of a high-risk AI system before full conformity assessment — subject to strict conditions. Law-enforcement or civil-protection bodies can also use in urgent cases, then seek authorisation without undue delay. This is not a defence-specific carve-out, but it explains emergency deployments outside the military context. (EUR-Lex)

3) If the defence exclusion doesn’t apply, would autonomous fighters tech be “high-risk”?

Very likely yes — for civil variants or dual-use spin-outs:

Annex I (product-safety route). AI that is a safety component of products covered by sectoral EU safety laws is high-risk where those products need third-party conformity assessment. That list explicitly includes EU civil aviation law (Reg. 2018/1139) — covering unmanned aircraft and their remotely controllable equipment. In a civil-UAS configuration, an autonomy stack acting as a safety component would be regulated as high-risk. (EUR-Lex)
Annex III (stand-alone uses). Separate “high-risk” buckets also capture, for example, remote biometric identification and other sensitive functions (if and where permitted by Union/national law), critical infrastructure safety components, and more. If a fighter-born sensing suite were repurposed for civil border surveillance or public-space identification, you quickly hit these Annex III categories. (EUR-Lex)

What “high-risk” demands in practice
Providers must implement a risk-management system, data governance, technical documentation, logging, transparency/instructions, human oversight, and accuracy/robustness/cybersecurity — then pass conformity assessment, issue an EU Declaration of Conformity, and affix CE marking. Deployers also carry duties (for example, monitoring, data relevance, user notification in some cases). (EUR-Lex)

4) Sensors on show: what about face recognition and other “red lines”?

The EU bans several AI practices outright (from 2 Feb 2025), including:

Untargeted scraping of facial images to build recognition databases.
Biometric categorisation inferring sensitive traits (for example, race, political opinions, religion).
Emotion recognition in workplaces or schools (with narrow safety/medical exceptions).
Predictive “risk assessments” of criminality based solely on personality traits/profiling.
Real-time remote biometric identification (RBI) in public spaces for law enforcement — unless strictly authorised and necessary for narrowly defined objectives (for example, locating a specific suspect in serious crimes, preventing a specific imminent threat, finding missing persons), with prior judicial/independent approval and registration. (EUR-Lex)

Implication for a trade-show demo: training a camera on attendees to test real-time RBI in a public venue would likely be unlawful unless those strict law-enforcement exceptions and procedural safeguards apply — which they typically will not at a commercial defence conference. (EUR-Lex)

5) Real-world testing in the EU (civil or dual-use variants)

If a provider runs real-world flight tests in the EU (outside the defence exclusion), the Act requires — among other things — registration, an EU-established entity or EU legal representative, limits on duration (normally up to six months, extendable once), rules on informed consent (with special handling for law-enforcement tests), qualified oversight, and the ability to reverse/ignore the system’s outputs. Serious incidents must be reported promptly. (EUR-Lex)

6) Foundation models (GPAI): obligations can still attach

From 2 Aug 2025, Chapter V sets baseline transparency and copyright-policy duties for providers of general-purpose AI models (with extra obligations if the model presents systemic risks). The defence exclusion in Article 2(3) is framed for AI systems, not models. So, if a foundation model is placed on the EU market, the model provider can have obligations even if a downstream customer is a defence prime. (Open-source specifics and systemic-risk thresholds also apply.) (EUR-Lex)

7) Timelines you need in Rome (as of 6 Nov 2025)

Entry into force: 1 Aug 2024 (20 days after OJ publication).
Prohibited practices + core chapters (I–II): apply from 2 Feb 2025.
GPAI rules (Chapter V), plus other chapters (III §4, VII, XII, and Article 78): apply from 2 Aug 2025.
General application: 2 Aug 2026 (high-risk regime starts to bite broadly).
Article 6(1) Annex III classification trigger & related obligations: 2 Aug 2027. (EUR-Lex)

8) Enforcement and penalties

Violating prohibited practices (Article 5) can draw fines up to €35m or 7% of worldwide annual turnover, whichever is higher.
Other operator obligations can reach €15m or 3%; supplying misleading information can reach €7.5m or 1% (SMEs benefit from caps). Separate fine scales apply to EU institutions. (EUR-Lex)

9) Practical playbook for IFC attendees

If you are a defence OEM showing autonomy stacks:

Map uses: Defence-only (excluded) vs any civil or law-enforcement pathways (potentially in scope). Document the exclusivity of defence deployments if you rely on the carve-out. (EUR-Lex)
GPAI suppliers: If you place a foundation model on the EU market, expect Chapter V duties regardless of defence customers. (EUR-Lex)
No RBI demos on the show floor. Those prohibitions already apply in 2025. (EUR-Lex)
Planning EU flight tests for civil variants? Prepare for real-world testing conditions (registration, oversight, incident reporting). (EUR-Lex)
For civil UAS commercialisation, treat your autonomy as high-risk (EASA product-safety route), budget time for conformity assessment and CE marking. (EUR-Lex)

If you are a European ministry or agency:

Distinguish military operations (out of scope) from law-enforcement or border uses (in scope; watch RBI limits and high-risk duties). Consider Article 46 emergency derogations only in exceptional and documented cases. (EUR-Lex)

If you are a civil UAS integrator:

Expect the full high-risk package (risk management, data governance, human oversight, cybersecurity, logs, conformity assessment, CE). Build compliance into your system architecture, ML pipelines, safety cases, and ops manuals from day one. (EUR-Lex)

10) Quick decision pathway

Is the use exclusively defence or national security?
Yes: AI system is out of scope.
No: continue. (EUR-Lex)
Is it a civil product or law-enforcement/border use?
Civil product with safety function (for example, civil UAS): High-risk via Annex I ? conformity assessment + CE. (EUR-Lex)
Stand-alone sensitive use (for example, RBI, critical infrastructure): Annex III high-risk or Article 5 prohibition applies. (EUR-Lex)
Is there a GPAI model being placed on the EU market?
Yes: Chapter V duties for model providers from 2 Aug 2025, separate from the defence carve-out for systems. (EUR-Lex)
Is this pre-market testing?
Real-world testing rules apply (registration, oversight, incident reporting). (EUR-Lex)

Bottom line for “Autonomous Fighters in Rome”

A military-only display of GA-ASI’s autonomous fighters is outside the AI Act.
Any civil spin-off (cargo drones, civil surveillance, airport ops) or law-enforcement application in the EU will trigger the Act — often at the high-risk level — together with tight prohibitions around biometric uses in public spaces. Plan your compliance architecture accordingly. (EUR-Lex)

This article is informational and not legal advice. Citations are to the Official Journal text of the Artificial Intelligence Act (Regulation (EU) 2024/1689) for scope (Art. 2), prohibitions (Art. 5), high-risk regime (Ch. III), real-world testing (Arts. 57–61), GPAI (Ch. V incl. Art. 53), timelines (Art. 113), and penalties (Art. 99–101).

About the author — Richard Ryan

Richard Ryan is a UK barrister (Direct Access), mediator and Chartered Arbitrator (FCIArb), and a Bencher of Gray’s Inn. He practises across defence, aerospace, construction, engineering and commodities, with a leading specialism in drone and counter-drone law, unmanned aviation regulation, and AI-enabled safety and compliance. Richard advises government, primes and operators on EU/UK UAS frameworks, BVLOS, U-space/UTM and the EU AI Act. He leads Blakiston’s Chambers and contributes regularly to industry guidance and policy consultations.

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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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Trespass by Drones: Is Section 76 Civil Aviation Act 1982 Fit for Purpose?

admin.richard — Tue, 30 Sep 2025 09:51:14 +0000

Blakiston’s Chambers – Insight for Drone Operators •
30th September 2025

Why this matters for drone companies

The question of whether a drone operator can be sued for trespass when flying over private land is no longer a theoretical debate. With drones now routinely used for surveying, deliveries, inspections, and filming, landowners are increasingly asking whether they can stop flights above their property.

At the heart of this issue lies section 76 of the Civil Aviation Act 1982. Originally drafted for manned aviation, it has never been fully adapted to the realities of drones flying close to the ground, often well below 400 feet.

Recent High Court cases – Anglo-International Upholland Ltd v Wainwright (2023) and MBR Acres Ltd v Curtin (2025) – have thrown the law into sharper focus. For drone operators, the practical question is whether your drone can legally enter the airspace above a neighbour’s land without risking an injunction or damages claim.

Trespass: the basic position

Trespass is normally straightforward: step onto someone’s land without permission, and you’re liable – even if you cause no harm. Landowners don’t need to prove loss; mere entry is enough.

But what about airspace? Does a landowner “own the sky” above their property? Historically, English law used the maxim cujus est solum, ejus est usque ad coelum – whoever owns the soil owns all the way up to the heavens. Courts have long since rejected that absolute view. Instead, the law recognises ownership only of the airspace “necessary for the reasonable enjoyment of the land”.

For manned aircraft, Parliament drew a compromise in section 76(1): flights at a “reasonable height” cannot be challenged as trespass or nuisance. But what is a “reasonable height” when drones are often flown at 50 metres, 20 metres, or even lower?

Bernstein and the buffer zone

In Bernstein v Skyviews (1978), a landowner sued after an aircraft flew hundreds of feet above his estate to take photographs. The court held that this was not trespass, because the aircraft was too high to interfere with the landowner’s use of his land.

That decision gave us a rough principle: landowners control only the slice of airspace that matters to their ordinary use of land. The problem is that drones now operate in precisely that slice – near buildings, gardens, roads, and industrial sites – where interference with land use is most likely.

The new drone cases

1. Anglo-International (2023)

Drone flights over a derelict college were used to capture images which encouraged trespassers to enter the site. The judge treated the flights as mischievous and granted an injunction, holding that section 76 did not protect the operators.

The ruling was short and did not carefully analyse airspace ownership or flight height, but it showed courts are willing to act against drone flights if their purpose is seen as facilitating trespass or mischief.

2. MBR Acres (2025)

Animal rights campaigners used drones to film over a research facility. Some drones were flown as low as the height of a single-storey building, but evidence on height and operators was inconsistent.

The judge refused to grant an injunction. He accepted that flights at 50 metres or more did not interfere with the use of the land. Importantly, he suggested that other legal remedies – nuisance, harassment, or data protection – might be more appropriate than trespass.

What this means for drone operators

Trespass claims are harder to make stick than many landowners think. Courts are reluctant to find trespass unless flights interfere with the actual use of land (e.g. disrupting activity on site, flying extremely low, or endangering people).
Section 76 may be becoming redundant. Both Bernstein and MBR Acres suggest that unless a flight interferes with land use, there is no trespass at all – making section 76’s “reasonable height” defence almost irrelevant.
Purpose of flight matters – at least sometimes. In Anglo-International, mischievous use of drones was enough to justify an injunction. Operators engaged in legitimate commercial activity (surveying, deliveries, inspections) are on stronger ground.
Evidence is critical. Landowners will struggle to obtain injunctions unless they can prove height, frequency, and impact of flights. For operators, maintaining robust flight logs and compliance records (as required by the UK drone regulations) is the best defence.
Regulatory compliance is non-negotiable. Section 76 only protects operators if flights are lawful. Breach of drone regulations (flying beyond visual line of sight, too close to people, or over congested areas without permissions) will undermine any defence.

Looking ahead

The law remains unsettled. Drone operators should assume:

Routine overflights at safe, documented altitudes are unlikely to amount to trespass, provided they don’t interfere with land use.
Low-level flights directly over private land remain risky, particularly if they appear intrusive, harassing, or unsafe.
Other causes of action are emerging – nuisance, data protection, and harassment are likely to be more powerful tools for landowners than trespass.

For commercial operators, the key is to plan flight paths with landowner sensitivities in mind, document compliance, and keep up with evolving case law. What remains unclear is whether Parliament will modernise section 76 to deal explicitly with drones – or whether the courts will continue to adapt 20th-century law to 21st-century technology.

Blakiston’s Chambers advises 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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Commercial and recreational drone use in the UK

zeroabove — Mon, 11 Nov 2019 15:27:23 +0000

This is a report published by the House of Commons Science and Technology Committee in October 2019. The government has been busy to the many aspects of drones and finally is taking some positive measures.

The report focuses on current regulations, primarily under the Civil Aviation Act 1982 and the Air Navigation Order 2016, as amended in 2018 (Order 2019 No.261).

It is now for most, common knowledge that Flight Restriction Zones (FRZ) exist around airports and is now 5Km, increased from 1Km. It was a concern for Air Traffic Control operators that by increasing the disctance it would capture more drone pilots flying their drones and calling the ATC asking for permission to fly, thereby increasing the workload of those ATC operators. It is clear that there is an inconsistent approach by ATC’s in how they deal with drone operators and some taking an inordinate amount of time to approve such a request. Some ATC’s are levying charges for permission!

The report refers to forthcoming regulation and names the Drones Bill, which passage on to the statute books has been halted due to Brexit and a General Election. However, there will be new legislation that was mentioned in the recent Queen’s Speech, namely the Air Traffic Management and Unmanned Aircraft Bill. The new bill does include to an extent what the original drones bill was going to include:

Drone registration;
Remote pilot competency;
Personal details of drone operators.

The consensus around registration is that law abiding professional drone operators will at some poiint engage in registration, however those wishing to act illegally shall not, a point which was acknowledged by the CAA. The report recommends that those operators that avoid registration should be subject to a sliding scale of penalties for failure to register, starting with a warning, and culminating in a fine and a prison sentence. You have been warned!

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