Navigating the Skies: Legal Perspectives on the UK’s Drone Revolution
By Richard Ryan
November 2024
As an experienced drone lawyer in the UK with two decades of immersion in this rapidly evolving field, I’ve witnessed firsthand the transformative impact drones have across various industries. The recent ARPAS report “Drones In Action” (November 2024) showcases a spectrum of innovative applications, from housing inspections to emergency response. While these use cases highlight significant benefits—such as cost savings, improved safety, and enhanced efficiency—they also surface critical legal considerations that must be addressed to foster sustainable growth in the drone industry.
In this blog, I will analyse the legal issues arising from these drone applications, provide recommendations for regulators to facilitate industry development, and identify unresolved legal challenges.
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Legal Issues Arising from Drone Use Cases

1. Airspace Regulation and Flight Permissions
Many of the use cases involve operations in complex airspace or beyond visual line of sight (BVLOS), such as:
• Decommissioning Nuclear Sites (Sellafield Ltd): BVLOS flights over sensitive areas.
• Train Track Inspection (Network Rail): Flights over live tracks without service interruption.
• Electric Grid Tower Inspections (National Grid): Operations near critical infrastructure.
• Live Flare Stack Offshore Inspections: BVLOS flights over the North Sea platforms.

Legal Considerations:
• Air Navigation Order 2016 (ANO 2016) and CAA Regulations require specific permissions for BVLOS operations and flights near congested areas or critical infrastructure.
• Safety Assessments: Operators must conduct rigorous safety cases and obtain Operational Authorisations from the CAA.
• Compliance with Flight Restriction Zones (FRZs): Especially near nuclear sites, railways, and power grids.

2. Data Protection and Privacy
Use cases involving data capture, such as:
• Housing Inspections: Capturing images of residential properties.
• University of Exeter’s Gutter Cleaning: Collecting extensive imagery over campus buildings.
• Site Security Management: Continuous surveillance operations.

Legal Considerations:
• General Data Protection Regulation (GDPR): Operators must ensure compliance when processing personal data.
• Privacy Impact Assessments: Necessary to evaluate risks to individuals’ privacy.
• Transparency and Consent: Informing affected individuals when feasible.

3. Environmental and Wildlife Impact
Operations in sensitive environmental areas:
• Peatland Restoration: Drone seeding over ecologically sensitive peatlands.
• Emergency Response: Drones used in flood monitoring by the Environment Agency.

Legal Considerations:
• Wildlife and Countryside Act 1981: Protects certain wildlife from disturbance.
• Environmental Impact Assessments: May be required for operations affecting protected areas.

4. Security and Counter-UAS Measures
Use cases involving critical infrastructure and potential security risks:
• Nuclear Sites: Potential for drones to be perceived as security threats.
• Emergency Services: Need to deconflict airspace during emergencies.

Legal Considerations:
• Security Regulations: Operators must coordinate with authorities to prevent misunderstandings.
• Counter-Unmanned Aircraft Systems (C-UAS): Awareness of anti-drone measures that could impact legitimate operations.

5. Insurance and Liability
All commercial drone operations must consider:
• Mandatory Insurance: Compliance with EC Regulation 785/2004 on insurance requirements.
• Liability for Damages: Clear understanding of responsibility in case of accidents or data breaches.
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Pathways for Regulatory Enhancement

To facilitate easier business operations and industry development, regulators can consider the following recommendations:

1. Streamlining Permissions for BVLOS Operations
• Develop Standard Scenarios: Create predefined conditions under which BVLOS operations can be conducted without lengthy approval processes.
• Risk-Based Approaches: Adopt flexible frameworks that assess risk based on the operation’s specifics rather than a one-size-fits-all model.

2. Enhancing Regulatory Clarity and Guidance
• Clear Guidelines on Data Protection: Issue specific guidance on GDPR compliance for drone operators.
• Environmental Operation Protocols: Provide clear procedures for operations in or near protected areas to prevent ecological disturbances.

3. Facilitating Technological Advancements
• Support for UTM Systems: Implement unmanned traffic management systems to safely integrate drones into UK airspace.
• Encourage Innovation: Provide sandbox environments where companies can test new technologies under regulatory supervision.

4. Harmonizing Security Measures
• Establish Communication Channels: Create protocols for operators to notify authorities of intended flights near sensitive sites.
• Standardise C-UAS Policies: Ensure that anti-drone measures do not inadvertently disrupt lawful operations.

5. Simplifying Insurance Processes
• Unified Insurance Platforms: Work with the insurance industry to develop products tailored for drone operations.
• Liability Caps: Consider legislative caps on liability to reduce barriers for smaller operators.
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Legal Issues Needing Resolution

1. Airspace Integration and Management
• National Airspace Policy for Drones: There is a pressing need for a comprehensive policy that integrates drones into the national airspace, balancing innovation with safety.

2. Privacy Laws Adaptation
• Modernising Legislation: Current privacy laws may not adequately address the nuances of drone surveillance. Legislation needs updating to reflect technological capabilities.

3. Standardisation of Training and Certification
• Pilot Competency: Establish standardized training programs and certifications to ensure all operators meet safety and competency requirements.

4. Addressing Environmental Concerns
• Environmental Regulations: Clear regulations are needed to manage the environmental impact of drones, particularly in wildlife areas.

5. International Coordination
• Cross-Border Operations: With companies operating internationally, harmonization with EU and international regulations is essential to facilitate operations and maintain competitiveness.
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Other Relevant Issues
1. Public Perception and Acceptance
• Community Engagement: Efforts should be made to educate the public on the benefits of drones to alleviate concerns over privacy and safety.

2. Workforce Development
• Skill Shortages: Addressing the need for skilled professionals in the drone industry through education and training initiatives.

3. Ethical Considerations
• Responsible Use: Establishing ethical guidelines to govern the use of drones, particularly in sensitive contexts like surveillance and data collection.

4. Infrastructure Investment
• Support Facilities: Investment in infrastructure such as drone ports and charging stations to support the growing industry.

5. Encouraging SME Participation
• Reducing Barriers to Entry: Simplify regulatory processes to encourage small and medium-sized enterprises to enter the market, fostering innovation and competition.
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Conclusion

The “Drones In Action” report highlights the immense potential of drone technology to revolutionize various sectors in the UK. However, to fully realize these benefits, it is imperative to address the legal challenges that accompany such technological advancements. Regulators play a crucial role in shaping a conducive environment that balances innovation with safety, privacy, and environmental stewardship.

By streamlining regulatory processes, updating legal frameworks, and fostering open communication between stakeholders, the UK can position itself at the forefront of the global drone industry. As we navigate this exciting frontier, collaboration between industry players, regulators, and legal professionals will be key to unlocking the full potential of drones while safeguarding public interests.
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Author: Richard Ryan, an experienced drone lawyer specialising in UK aviation law, with 20 years of expertise in navigating the legal landscapes of unmanned aerial systems.

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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. 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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Our recent research with over 350 local authorities confirmed that councils do not have appropriate policies in place for drones and where there is a policy in place, it is not consistent with CAA regulations. We did not find a single policy that was accurate, up to date or enforceable.

Drones are here to stay, and the number of drones and unmanned aircraft is forecast to grow rapidly for both recreational use and commercial operations. Local authorities have a significant role to play in promoting the safe use of drones and creating an environment that supports the economic growth of the sector. We also believe that local authorities could have a very interesting role managing the governance of lower level airspace.

Airspace

Airspace is a national asset that needs to be shared in the most effective and efficient way to meet the overall needs of the UK. The biggest challenge to the future of unmanned aviation is public perception. The battleground here will be about airspace governance – the policies and rules that need to be put in place such that the benefits of unmanned aviation are seen to outweigh the perceived risks and nuisance.

The CAA is the regulator for the UK airspace structure and is the only organisation that can authorise changes to the structure of airspace. This works well for traditional aviation and there is an airspace change process that enables airports and our national air traffic control provider to request changes to the airspace structure. This change process is well defined and involves public consultation with local communities. It works effectively for governing higher-level airspace and airspace around airports.

However, lower level airspace that will be occupied by delivery drones and urban air mobility services is a bit like the Wild West. As long as the remote pilot complies with the CAA regulations, then unmanned aircraft can fly wherever they like. There are further restrictions that relate to Temporary Danger Areas (TDA’s) whereby drones can fly Beyond Visual Line of Sight (BVLOS), but this is not a viable option for scaling to meet the future volume of traffic.

There is a bigger picture that needs to be addressed around the governance of lower level airspace. Who decides that it is acceptable for unmanned aircraft to fly over the local parish graveyard? Who determines that 60 flights an hour at night over my house is acceptable when the flight could equally fly over a parallel route? PwC’s “Building Trust in Drones” research revealed that only 31% of the UK public feel positive towards drone technology. The biggest concern was the improper use of drones and 70% of respondents wanted routes to be registered with the CAA.

The CAA will not have the capacity nor the local knowledge to deal with this micro-managed governance of lower level airspace. We believe there will need to be a framework in place for the CAA to delegate governance of lower level airspace to a local body that can engage with the public and address their concerns, which may be varied and many; especially if we take the USA as an example. Local authorities would be well positioned to play that role.

Legislation

Drone legislation is complex with regular changes such as the mandatory drone registration scheme introduced at the end of 2019 (whereby only 60,000 registered users were recorded Dec 2019) and there will be widespread changes with the introduction of complex European Union Aviation Safety Agency (EASA) regulations in June 2020. A local authority may find it substantially more cost effective to subscribe to a policy service rather than develop and maintain one in-house. Local authorities have a significant role to play in promoting the safe use of drones, creating an environment that supports the economic growth of the sector and also facilitating the police in enforcement activities.

The safety regulations are mainly contained in Articles 94 and 95 of the Air Navigation Order (ANO) are fundamental and are referenced in CAP 393. These are safety regulations and do not encompass matters relating to privacy and security.  The ANO articles set limits on where unmanned aircraft may fly and whether they can be used for commercial purposes (commercial operations) and do not necessarily include hobbyists or model flying clubs. The key ANO articles of relevance are:

• Article 241 – endangering safety of any person or property
• Article 94 – small unmanned aircraft: requirements
• Article 94A – small unmanned aircraft; permissions for certain flights
• Article 94B – small unmanned aircraft: Interpretation of expressions used in the definition of “flight restriction zone”
• Article 95 – small unmanned surveillance aircraft

There is inherent confusion within the various regulations such as Schedule 2 of the ANO defines a Small Unmanned Aircraft as follows:

“any unmanned aircraft, other than a balloon or a kite, having a mass of not more than 20kg without its fuel but including any articles or equipment installed in or attached to the aircraft at the commencement of its flight;”

Although not specified in the ANO, the CAA adopts the following definitions:

‘unmanned aircraft’ means any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board;

‘aircraft’ means any machine that can derive support in the atmosphere from the reactions of the air other than reactions of the air against the earth’s surface;

Policy considerations

Whilst there are significant benefits from the use of drones, given the breadth of airspace, air traffic volume and lower flying altitudes across large geographies of a local authority, the potential risks need to be understood and mitigated.

The future of unmanned aviation is evolving rapidly and local authorities should ensure that they have a lead officer responsible for implementing and maintaining appropriate policy. The policy should initially be focused on drones and include:

• National context – up to date with the latest legislation and regulation as changes are announced;
• Local context – relevant local airspace restrictions and permissions required to fly in these areas;
• Council owned land – restrictions and opportunities for recreational flying from council owned property and land;
• Commercial use of drones – facilitating the growth and economic benefits of commercial drone operations;
• Exceptions – management of exceptions such as emergency services and flying clubs;
• Suspicious drone activity – Reporting suspicious activity or drone usage that presents a threat to the public;
• Council strategy – how the local authority intends to realise benefits from drone technology.

We advise a modern local policy that sets out a ?‘total airspace approach’ and includes proportionate local measures outside expanded flight restriction zones to ensure resident and wider public safety. A council must understand that there will be a need for special exemptions and/or permissions which, it may grant in exceptional circumstances. Where these will apply, they will primarily relate to public safety activities and accredited organisations.

Potential risks for local authorities

Our research highlights there is a general lack of understanding of the regulations and this is reflected in the lack of accurate and up to date policy across the local government sector. There are a number of very active social media groups within the drone community that share inconsistencies and misinformation provided by local authorities and organisations such as the National Trust and English Heritage. We believe it is only a matter of time before there is a test case challenging a local authority. Such a challenge would present the following risks to the local authority:

1. Significant legal costs in defending a challenge by judicial review. Legal consequences of a breach of the ultra vires rule are significant and there is much case law on this. A person who is aggrieved by a local authority’s decision may apply to the court for judicial review of the decision under Part 54 of the Civil Procedural Rules. The court may grant a successful applicant one of the following remedies against a local authority:

(a) An order quashing an ultra vires decision;

(b) An order (a prohibiting order, mandatory order or injunction) stopping an ultra vires action that is about to take place;

(c) An order compelling the local authority to perform a public duty (a mandatory order or injunction);

(d) An order making the legal position clear (a declaration).

2. Risk of other remedies available in ordinary private law High Court proceedings, namely injunctions, declarations and damages;

3. Significant and substantial negative PR.

Conclusion 

It is abundantly clear that local authorities have a great opportunity to take advantage of an evolving legal position and also be much better informed.  Councils can provide a much safer environment for people that enjoy open spaces and for people that enjoy flying drones.  The legislative burden is increasing at an alarming rate, which means that local authorities must be able to resource accordingly.  This can be expensive and time consuming.  By using a conjoined policy document that is up to date and consistent with changing regulations, local authorities will substantially mitigate the risks of legal challenge.

Richard Ryan is a barrister and Chris Gee is MD Agilio and Trustee for Safer Drones.

Richard and Chris are offering all local authorities a free review of their existing drone policy or an initial free consultation to answer questions relating to the development of a new policy. Please contact chris.gee@agilio.co.uk or richard.ryan@blakistons.co.uk.

Richard is a practicing barrister and also a commercial UAV pilot (PfCO). Richard worked for the CAA UAS Unit and was responsible for all complex drone permissions in the UK from land up to space and inspected and audited drone pilots and National Qualified Entities, the first person in the UK to do so. Richard provides cogent advice on drone law to many different stakeholders in the UK and abroad.

Chris is a commercial UAV pilot (PfCO), programme manager and management consultant with 25 years’ experience helping organisations innovate through new technology including drones. He has worked extensively in local government and also has manned aviation experience having previously held a pilot’s licence.

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