09 March 2017

While the use of commercial drones in retail has generated interest in the national press in recent months, the increasing use of drones in UK agriculture has largely flown under the radar. Agricultural businesses are utilising drones for a range of purposes from soil and field analysis to the monitoring of arable and pastoral stock and, in common with all nascent technologies, the range of uses of drones is constantly developing. The rise of the drones requires a consideration of how this new technology interacts with the centuries old body of property law. So, if you are one of the growing numbers of drone users, what property issues should you be aware of and what protection is offered to landowners affected by drone usage?

Can a drone commit trespass?

Whether operated by a human or via GPS navigation, there are likely to be instances where a drone will fly over a landowner's property without their permission. Intuitively, one might argue that this is trespass and, indeed, if the drone was to land (hopefully not crash land but more on that below) on the adjoining landowner’s property, it would constitute trespass.

However, can a drone commit trespass when it is in the air? In certain circumstances, yes, it can. The court has found that trespass can occur when there is an invasion of airspace. This position is subject to some limitations, however. The rights of the property owner in relation to the airspace above their land are limited to such a height as is necessary for the ordinary use and enjoyment of their land. Put simply, if a drone flies over land at a height that does not interfere with the landowner's ordinary use of the land then it should not constitute trespass. However, if a drone was to fly over a landowner's property at a low height, this could present an issue for the drone operator.

The remedies available to a landowner for trespass by a drone are the standard remedies available in respect of all trespass: abatement (self-help), injunctive relief and damages. Of these remedies, claims for an injunction restraining the trespass and damages for any loss caused by the trespass (for example, loss caused to livestock) are the most common. A word of warning to those landowners who may seek to take matters into their own hands and adopt the Viscount Mountgarret-approach of shooting down the trespasser (a balloon in his case); to do so may put you at risk of sanction for criminal damage and possible breach of regulations. We would, as a result, recommend taking the safer course of action offered by the injunction/damages route.

Can a drone constitute a nuisance?

Drone users can also risk committing nuisance against a landowner. A drone used for soil and field analysis, for example, may fly over a landowner's property multiple times, or hover in one place for an extended period and, in so doing, may risk causing a noise nuisance.

In general, the noise generated by a drone may amount to a nuisance if the noise unreasonably and substantially interferes with the use or enjoyment of the landowner’s premises. As for trespass, a claim for nuisance could lead to the court awarding an injunction restraining the nuisance and damages. Such a claim may not be easy to evidence in a rural context, but all drone operators and landowners should be aware of this issue.

Damage to property

Of course, as with all aviation vehicles, drones may malfunction at some point and could cause damage to another's property whether directly (e.g. impact damage) or indirectly (e.g. property damage caused by, or to, spooked livestock). In such cases, the usual principles of negligence will apply and, if negligent, the drone operator will be liable for foreseeable loss caused.

This common law position is, however, bolstered by statute and regulation. The Air Navigation Order 2016/765 principally governs the use of aircraft, including drones, in the UK. Article 241 of the Order provides an overriding principle that applies to all aviation activity at all times, namely that “[a] person must not recklessly or negligently cause or permit an aircraft to endanger any person or property". Section 76 of the Civil Aviation Act 1982 provides that the operator is strictly liable for damage to property (this regime also extends to remotely piloted drones); this is significant as it means that the operator will be liable for all loss caused as a result of their negligent piloting, not just loss that is foreseeable.

How can Burges Salmon help?

Our agricultural lawyers keep pace with the evolving technologies in UK agriculture. Our team includes experts who can provide valuable insight into how these new technologies interact with the body of UK property law. If you have any questions about the use of drones in agriculture, please contact our Food and Farming team. 

This article was written by Chris Preston. 

Key contact

Kevin Kennedy

Kevin Kennedy Partner

  • Estates and Land
  • Private Wealth
  • Agricultural Disputes

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