We get asked every day about what the rules are for overflight of property. We asked our Law Team to investigate and this is what they came up with.
Restrictions on the Flight Path of an UAV
You have specifically asked that we comment on the question of “whether or not a Pilot may fly over private land”. The unauthorised entry onto a persons land is what is referred to as “Trespass”; which includes when a person “directly enters upon another's land without permission, or remains upon the land, or places or projects any object upon the land”, and is actionable per se without the need to prove any quantifiable damage.
Therefore to determine whether or not an aircraft is trespassing over a private owners land, one must consider the definition and extent of what is considered to be “land”. Historically it was considered that the land owner owned everything above and below the surface of the land, relying on the 13th century maxim of Cuius est solum eius est usque ad coelum et ad inferos - meaning whoever owns the soil owns everything up to the heavens and down to the depths of the earth. This, however, is no longer strictly the case and there is no absolute right in respect of the airspace above the land and things below the surface of the land.
The case that should be cited is Bernstien of Leigh –v- Skyviews & General Ltd  which concerned whether or not a plane taking photographs of a person's property, from that said property’s airspace was a trespass over land the property was situated upon. The judgment overturned the 13 century maxim mentioned above, and found that the extent of a landowners property is ‘restricted to a height necessary for the ordinary use and enjoyment of his land’. This case relates specifically to the laws of England and Wales, but is regarded as persuasive precedent in Scotland and Northern Ireland.
Following the judgement in the case of Bernstien, parliament enacted The Civil Aviation Act 1982, to provide a single statutory protection offered to aircraft throughout the whole of the United Kingdom. It reads that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property at a height above the ground which is reasonable (s76(1)). However, s76(2) confers a statutory right of action of a landowner in respect of physical damage (i.e dropping articles from the aircraft onto the land) caused by aircraft to their land or property situated thereon, actionable without proof of negligence. The definition of aircraft applying to both aeroplanes and UAVs.
A second case, tried after the enactment of the Civil Aviation Act 1982, was the case of Anchor Brewhouse Developments Ltd –v- Berkley House (Docklands Developments) Ltd (1987). This case contrasted the principle set out in the Bernstein case, as the courts found that the booms of cranes did in fact constitute a trespass where they swung over a person’s property.
Relying on existing case law and the provisions of the Civil Aviation Act 1982, it can be argued that flying an UAV safely above another persons private land at a height which does not restrict or interfere with that person’s ordinary use and enjoyment of his land, will not constitute a ‘trespass’; provided that the flight and Pilot meet the statutory requirements as detailed in item 1. (Air Navigation Order, Articles 240, 241, 94 and 95)
However, although the flight of the UAV would not constitute as a trespass, the Pilot himself/herself entering onto the land without permission would constitute a trespass. Therefore if for example you pilot the UAV over private land and it crashes, you would be putting yourself in a compromising position by going and retrieving it .
Further to the above, careful note should be taken that the collection of images of identifiable individuals, even inadvertently, when using surveillance cameras mounted on an UAV will be subject to the Data Protection Act. As this Act contains requirements concerning the collection, storage and use of such images, Pilots should ensure that they are complying with any such applicable requirements or exemptions.
In my closing line of advice, I would strongly recommend that our teams and graduates employ an element of compromise and pragmatic judgement. Although you are not legally obliged to seek permission from the landowner, as the law is changing and it would only take one very able-minded (and wealthy) individual or organisation to bring a claim against a Pilot for trespass, it would be in your interests to err on the side of caution until the law is clarified.