Birdseye view of drones – Part 2: The small print, the key issues

Further to our earlier article on the impact of drones on the real estate sector, we consider the red tape surrounded by the use of drones and the wider implications on operators and pilots.

The legal framework in 2021

Since the 31 December 2020, marking the end of the Brexit transition period, the UK has ‘retained EU law’ which is the main source of the regulations surrounding drone usage. The retained EU Law consists of the EU Basic Regulation 2018/1139 (BR), the UAS IR (Unmanned Aircraft Systems Implementing Regulation, 2019/947) and the UAS DR (Unmanned Aircraft Systems Delegated Regulation, 2019/945). The UK also has the domestic Air Navigation Order 2016 (as amended) (ANO) which deals with things not covered by the UAS Regulations but also covers the legal penalties for breaching the UAS Regulations in the UK. The CAA (Civil Aviation Authority) is the competent authority for governing aviation matters within UK and has published detailed guidance in CAP722 on how it expects operators to comply with the regulations, together with numerous consumer-oriented information leaflets and guides such as the Drone Code.

Under the retained EU law there are three categories when flying drones:

  • Open
  • Specific and
  • Certified

Open has less risk and less regulation, and allows operators to fly within pre-determined parameters, with no further authorisation required from the CAA, whereas certified has the highest risk (akin to manned aviation) and the most regulation.

Flying requirements

When flying most types of drone for any reason you must:

  • Have adequate registration
  • Obtain an operator ID and flyer ID (if applicable)
  • Pass specific practical and theory tests

When flying a drone that involves a greater amount of risk, and so falls into the specific category, as well as the above requirements, you must also:

  • Hold valid commercial insurance and
  • Obtain specific CAA authorisation

Since 31 December 2020, there is now no distinction between commercial and non-commercial operations of drones.

For real estate marketing purposes, you could operate under the open category with a drone under two kilograms and still obtain high quality footage if the drone was operated 50 metres away from uninvolved persons. For more complex flight operations that require longer flight times and higher quality video footage/analysis with greater risk, then this is more likely to fall within the specific category. Accordingly, CAA specific authorisation and insurance would be required.

From 1 January 2023, the new classification system for drones placing them in classes from C0-C4 will come into effect. Drones falling within these classes will have to meet certain standards and how they will be able to be operated will depend on the specific class they fall within.

Wider implications

Section 241 of the ANO applies to all operating categories of drones and stipulates that a person must not recklessly or negligently cause or permit an aircraft (manned or unmanned) to endanger any person or property (which includes other aircraft and their occupants). This would capture both the pilot and the operator. Furthermore, one must not fly within five kilometres of an Aerodrome Traffic Zone or risk facing a prison sentence of up to five years!

When operating indoors within a closed structure, the ANO is not applicable but the Health And Safety At Work Regulations would apply.

Data protection issues may arise if the information captured can identify individuals, so the retained EU law version of the General Data Protection Regulation (EU) 2016/679 (UK GDPR) and the Data Protection Act 2018 should be followed. Data protection will play a key part in the future of drones as the technology becomes more advanced and how that data is captured and processed will be significant. Other liabilities such as tort, product liability and trespass should also be considered in the use of drones. An increase in drone usage will require specialist insurance, aviation and litigation expertise.

If an incident does occur then an occurrence report in the correct manor must be filed with the Air Accidents Investigation Branch (AAIB).

When operating a drone outside of the UK, the relevant state authorities should be consulted for the appropriate registrations and authorisations specific to that country. The UK are working on having the retained EU law being recognised throughout the EU but for now there is no mutual recognition as yet following Brexit.

Comment

Being aware of the flying requirements when using drones is key. When using a drone for real estate and construction purposes, make sure you understand whether your use of a drone falls within the open or specific category and the additional requirements under the specific category that must be followed. Essentially, the regulations in place are about risk and so being mindful of the risk involved, both in relation to the flying requirements and potential liabilities is something that should be carefully considered before taking to the skies.

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