Drones: don't fly out of bounds (legally)

Various commercial industries have already woken up to the myriad opportunities offered by drone technologies. Whilst the regulatory regime evolves, it is important that companies don’t fall foul of the law.

In 1783 the Montgolfier brothers attached a sheep to an early hot air balloon prototype in order to demonstrate the powers of their new invention to an amazed French public. Thankfully, today, Small Unmanned Aircraft (SUA) need no such proof of concept (sheep everywhere breathe a sigh of relief). Indeed, anyone concocting similar experiments with the family hamster may find themselves contravening legislation which entered into force in recent years in order to cope with the proliferation of such aircraft. Under Article 166(1) of the Air Navigation Order 2009 (ANO 2009): 

"A person must not cause or permit any article or animal (whether or not attached to a parachute) to be dropped from a small unmanned aircraft so as to endanger persons or property".

What is a Drone?

SUA, also loosely referred to as UAV (Unmanned Air Vehicles), UAS (Unmanned Aircraft Systems) or RPAS (remotely piloted aircraft systems) are more colloquially known as "drones". They are used in various civil industries to carry out important tasks from surveillance to transport and a 2015 House of Lords committee publication supported the claim that an estimated 150,000 jobs could be created in Europe in the drone sector by 2050. In the construction industry in particular, drones are fast becoming an invaluable tool, able to generate aerial images which can be used to monitor progress and provide immediate data on any faults that might lead to delays. Recently the Civil Aviation Authority (CAA) announced that it would allow Amazon to bypass certain aspects of the regulatory regime in place for drones, in order to facilitate the development of its "Prime Air" programme. So what are the current regulations?

Applicable Regulations

As unmanned aircraft with an operating mass of 150kg or less, drones are not subject to European Aviation Safety Agency regulations regarding airworthy certifications or pilot licencing etc. Nevertheless, they remain subject to national regulations, chiefly in the form of the ANO 2009. Under Article 255 of the ANO 2009 SUA are defined as:

"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."

Whilst SUA are exempt from most of the provisions of the ANO 2009 under Article 253, Article 138 of ANO 2009 sets out the overriding obligation that "A person must not recklessly or negligently cause or permit an aircraft to endanger any person or property". The key sections for SUA under the ANO 2009 are Articles 166 and 167. Under Article 166 a person in charge of a SUA may only fly the aircraft if reasonably satisfied the flight can be made safely and they are able to maintain direct, unaided visual contact. 

Under Article 166(5):

"The person in charge of a small unmanned aircraft must not fly the aircraft for the purposes of aerial work except in accordance with a permission granted by the CAA." 

"Aerial Work", defined in Article 259, is designed to cover any purpose, other than commercial air transport or public transport, for which an aircraft is flown if valuable consideration is given or promised for the flight.

Practicalities

If a company wishes to hire the services of a SUA pilot there are various practical steps that should be taken. If, for example, a construction company hires the services of a pilot to survey a construction site they should ensure that the pilot holds a valid Permission for Aerial Work (PfAW) from the CAA, a qualification which must be renewed on an annual basis, for which the pilot must have attended an approved course and passed a number of tests to demonstrate their competence.

Helpfully, the CAA provides a list of all individuals and organisations that hold a CAA Permission for Aerial Work, noting that whilst the companies contained within the list are approved from a safety perspective, the CAA will not take responsibility for the quality of their work.

Operators of SUA for commercial purposes are also advised to make sure that they have comprehensive insurance cover, including from any third party claims, as mandated under EU Regulation 785/2004. For drones over 20kg the minimum level of cover is set at €660,000, however, as a recent House of Lords Committee pointed out, this level of cover would be insufficient to cover the cost of compensation in the event of a serious accident to a member of the public and even operators of SUA under 20kg should bear this aspect in mind. 

Consequently, if a company hires out a drone operator it would be wise to ensure that the pilot warrants, inter alia that:

• they hold a valid PfAW;
• they have a comprehensive insurance package (the terms of which should be reviewed to ensure they are consistent with the task at hand); and
• that they operate in compliance with all applicable law.

To protect itself in the event of breach of any of these warranties or a third party claim a company should ensure it obtains an indemnity from the drone operator.

Conducting Operations "In House"

If a company wishes to undertake aerial operations "in house" with their own SUA they may still be required to obtain permission from the CAA. 

Under Article 167 a "small unmanned surveillance aircraft" refers to an SUA which is equipped to undertake any form of surveillance or data acquisition, thus covering drones that could be used to survey a construction site. Resultantly, among other restrictions, under article 167(2), a person must not fly a small unmanned surveillance aircraft: (a) over or within 150 metres of any congested area; (b) within 50 meters of any vessel vehicle or structure not under control of the person in charge of the aircraft; or (c) within 50 meters of any person without first obtaining a PfAW issued by the CAA. The person may also need to submit an Operational Safety Case (OSC), including a risk assessment of the operation. Further details regarding the requirements for obtaining an OSC may be found in chapter 3, section 2 of the CAA's guidance document, CAP 722.

In addition to the requirements mentioned above, it is important to be aware that there are various sites in the UK in which it is strictly forbidden to operate drones. All such information can be obtained via the National Air Traffic Agency's (NATS) Aeronautical Information Service (AIS).

If you have any queries regarding the use of drones for commercial purposes, Andy Crystal (andrew.crystal@rpclegal.com) from RPC's Technology and Outsourcing team and Ben Wilkins from RPC's Construction and Project Team (ben.wilkins@rpclegal.com) would be happy to help.