[co-authors: Katherine Wood, Clayton Beerman]
The use of unmanned aerial vehicles, more commonly known as drones, is increasing across the real estate sector but, as the numbers grow, so does public awareness of the negative as well as positive impact that drones can have. In recent months, we have seen a drone cause a main infrastructure bridge to close down and major airports brought to standstills by the presence of drones.
It’s not all bad news though. Drones are flexible and labour saving and the ways in which drones are used across the real estate sector is increasing and seems likely to increase further. Organisations are already using drones to conduct external property inspections, at a cost far cheaper than any manual inspection regime. Drones are now being used for insurance valuations and heat seeking drones can be instrumental in ascertaining whether a building has damp. All of this information can then be shared digitally. It has even been suggested by trend analysts that drone inspections could replace physical property viewings entirely by 2025.
Despite the clear technological and economic advantages to drones, there has been a backlash against drones from both the public and landowners. Coventry City Council has recently joined other councils and announced plans to implement a general ban on drones in parks and open spaces unless permission to fly a drone is sought and granted from the council. As landowners, councils are primarily concerned about the liabilities they could incur from any damage caused to people or property on council land and also from increases in trespass and nuisance incidents.
In response to recent drone incidents, the government has announced plans to extend the no-fly parameters around major infrastructure and to provide the police with greater powers to seize drones and fine their misuse. Despite the risk to property that drones can pose, the laws surrounding the interaction of drones and property remain untouched.
Article 95 of the Air Navigation Order 2016 states that drones cannot be flown within 50m of a person, vehicle or building “not under your control”. There is little guidance on the meaning of “not under your control” when it comes to airspace but the case of Bernstein of Leigh v Skyviews & General Ltd [1978] establishes that a landowner’s airspace extends to such height as is necessary to ensure the ordinary use and enjoyment of the land. However, drones flying closer than 50m to private property do not necessarily trigger claims of trespass, as demonstrated in Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd [1987]; there must be a degree of regularity and permanence to the infringement.
As drones become more popular and their uses evolve, it is clear that both the law and drone technology need to develop. However, as much as participants across the property sector must protect against negative impacts, they must also embrace this new technology and take advantage of the unique opportunities and perspectives that drones present.
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