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Heavens above… Who owns the airspace above our heads?

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DRONES have become increasingly popular over the last decade with many people using them for exploration and entertainment. However, with their increasing popularity comes a host of rules on where they can be flown, when and by whom.

The latest consideration to make following the case of AIUL v Wainwright and Persons Unknown [2023] 5 WLUK 613 is whether flying a drone over private property is or can be considered a trespass.

In AIUL v Wainwright and Persons Unknown, a number or explorers were using a drone to explore the grounds of an old, supposedly haunted Catholic seminary building to establish routes of entry to explore the grounds further.

In doing so, the defendants were taking pictures and videos of their findings and publishing them to social media. This resulted in the site gaining popularity with other curious explorers wishing to participate.

Following the publication of the glamorised images, more people were being encouraged to visit the site to explore – therefore encouraging trespass on the private grounds.

Section 76 of the Civil Aviation Act 1982 states that there is no trespass “by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable”.

The intention of this legislation, to allow the airspace above property to be used for planes and aircrafts typically flying at a much greater height, is now being applied to privately owned drones.

In the case of AIUL v Wainwright, it was assumed that Section 76 would apply to drones. On the face of it, it would therefore seem as though flying the drone over the building would not be deemed as a trespass. However, the judge granted an injunction against the defendants stating that any future flying of drones over the site would amount to trespass.

The reasoning for this was because this complaint was not due to the simple act of flying but rather what is happening during the flight. The images and videos being taken by the drone were not only actively facilitating and encouraging further trespass on the land on foot but were also being used to work out new ways of entering the land.

In turn, this was increasing the risk of injury and endangering life on a site which was dilapidated.

In this case, no consideration was made to the actual height of the drone, rather the purpose of the drone’s flight. It was being used to take images and videos to assist in committing further wrongdoing, the height of the drones was considered unreasonable and therefore deemed a trespass.

This case has outlined one of many considerations when flying drones. It also highlights the importance of preventing trespass on private land, whether that be entering personally on foot or with technology or machinery.

If you have an issue with a party trespassing on your land or you have trespassed on another’s land and need assistance, contact the commercial litigation team at Wilson Browne Solicitors.


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