knowledge 1 March 2017 |

Caught in the Crosswind: Drones and the Rights of Property Owners

When we think of drones we tend to think either of small personal models or deadly military machines. But there’s a whole range in between, ready and waiting to be deployed, and the numbers are rising. The Irish Aviation Authority has estimated that there are between 4,000-5,000 drones in use in Ireland. In the property industry, drones are being utilised to great effect for site selection and surveys. Estate agents are using them to market trophy assets. In retail and logistics, Amazon and DHL have announced their intention to use drones to deliver their products.

But what does this all mean for property owners? Are they entitled to control the access that a drone has to their property or the level at which drones fly? If any courier or delivery service were to deliver by drone, would they need to follow public roadways? If they don’t, would they require property owners’ express authorisation? It is well established that ownership of all land and buildings comes with ownership of a certain amount of airspace. But precisely how much airspace a property owner owns and controls is uncertain.

While popularly referred to, the idea that a property owner owns all the land below and all the airspace above a property “from heaven to hell”, is not an accurate legal concept. It is, for example, well established that typical commercial aircraft do not trespass simply by flying over private land. No permission is needed. At the other end of the spectrum, someone seeking to oversail adjoining lands with a crane can be held to trespass where they do so without permission. It is the middle ground – where commercial drones will likely operate – which is most open to claim.

In Ireland “land” is statutorily defined since 2009 as including “the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such air space whether the division is made horizontally, vertically or in any other way”. This gives a basic parameter to work with. But it doesn’t give the certainty that both landowners and drone operators ideally need to happily co-exist.

The Irish Aviation Authority introduced regulations in 2015 under which certain drones may not be flown more than 120m above the ground or water nor at a distance of less than 30m from a person, vessel, vehicle or structure. These regulations address the potential for unregulated interference by drones with commercial and other aircraft in public navigable airspace as well as the potential implications of drones for personal safety and property damage. Notably however, they do not impose a minimum height restriction off the ground, nor do they directly address the question of what should be considered private airspace in which drone flight is prohibited.

Infringements into private airspace lead most usually to claims for damages based on trespass, nuisance or breach of privacy. The English case Leigh v Skyviews & General Ltd from 1978 had elements of all of these issues, with the judge in that case, Baron Bernstein, citing the need, “to balance the rights of an owner to enjoy the use of his land against the right of the general public to take advantage with all that science has to offer in the use of air space”.

Whilst it didn’t involve a drone, the Skyviews case very much presents what must be considered to be a classic set of facts for cases in the present or future involving landowners and drone users. The plaintiff sued the defendant for trespass where the defendant had taken an aerial photo of the plaintiff ’s property, which he then attempted to sell to the plaintiff.

It is most likely that Baron Bernstein never contemplated in the Skyviews case, that “all that science has to offer in the use of airspace” would come to involve the widespread use of unmanned aircraft navigating the skies at, or just above, building height, but the judge’s logic and quest for balance is a laudable one and ultimately what we might expect in this developing area. Without a clear statutory or regulatory framework, we will likely see further litigation in the coming years where opposing sides will seek to assert either rights of privacy and ownership or rights of drone flight. In the US, the federal case being brought in Kentucky by drone enthusiast David Boggs against William Merideth, who shot down a drone allegedly taking photographs of Mr Meredith’s daughter, promises to re-open the debate there as to where private airspace ends and public airspace begins. While last year’s decision of the Supreme Administrative Court of Sweden to categorise all drones bearing cameras to be surveillance devices, and so to require a licence, side steps the public v private airspace debate, in a move that we could see followed in other countries as an alternative way of establishing boundaries. For now in Ireland it would seem that drones are here to stay, that the only way is up in terms of their use and keeping a respectful distance will go a long way towards avoiding dispute.