National Trust Policy Correspondence

Legal & Privacy
432

Ok, hopefully this puts it to bed. I emailed the CAA this morning and got a swift response. I approached the matter as a land owner. I would argue if this however went to court, A drone pilot would find it very difficult to defend themselves and the legal team from somewhere like the NT would find something that works for them and get a landmark ruling. Therefore I say. Let’s just get on with what we are doing.

I wouldn’t take the response as a legal advice to do what the hell you want. Be sensible, apply common sense, follow the drone code, especially in relation to crowds (if an NT property is busy at 2pm on a Sunday afternoon, or you have no way of seeing from a distance if an awkward garden space where getting out the way of falling drone would be difficult, don’t fly over it for example until it’s closed)

I asked:

Hello,

I am probably messaging the wrong department, if you could forward to the correct one if necessary, that would be helpful.

I am after clarification of section 76 of the Civil Aviation Act 1982. A number of online sources claim that the upper stratum airspace above a property is considered to be 500 to 1000 feet above roof space level and this is considered public space, giving no legal rights over it.

Drones have a maximum flight altitude of 400 feet from the ground. So therefore if someone is flying a drone directly over my property at between 50 and 400 feet could I consider it trespassing on my land.

Again according to some online sources the legal definition of lower stratum airspace states this is airspace immediately surrounding your property and that any interference of it could affect your personal enjoyment. Essentially, you own the airspace immediately around your property, which means you have a legal right to prevent people intruding on that space.

However, despite these sources saying this comes from section 76, having read it here: https://www.legislation.gov.uk/ukpga/1982/16/section/76/2019-05-08 I see no mention of these definitions.

Could it be clarified please, ideally in plain English where possible.

The Response was:

Thank you for your enquiry.

In the UK, airspace is not legally owned by anyone, that includes the airspace immediately above residential properties.

Drones are subject to operating restrictions, which includes the requirement to not fly within 50m of any people or property. Additionally, drones should not fly within 150m of built-up urban areas.

You may find this factsheet useful DRONE RULES: FLYING IN TOWNS (OR BUSY AREAS) (caa.co.uk)

I hope this helps.

Kind regards

Richard Taylor

Communications Department

Civil Aviation Authority

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433

Hardly puts it to bed when the email talks about the pre-2021 rules and links to the new :sob:

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434

Indeed, I did find that amusing, again it’s come from a pencil pusher, hence I say don’t take it as legal advice, but let’s just get on with it and use common sense.

Some law firms seem to think this 500ft to 1000ft over the roof of your property exists in section 76, but it’s not even stated in section 76, so I wanted to get clarification of where this number even came from. If it existed then the NT had a case. This has come from a communications offer, so I’d like to think he knows his stuff to a degree as it involves communicating the right information. As a land owner, I literally got told to ‘do one, and I have no legal ground to sue a drone pilot overflying my property’

At this point if I gave a damn, I’d spend money on a legal team, and this is the quite frankly, in my opinion, by continuing to poke the NT is what would eventually happen. So why risk it, let’s just get on with it and wait for this unprecedented case rather than giving the NT excuses to look into it.

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435

Good work. As you state, be sensible (I’ve come to NT places early before opening before), dont TOAL there, and enjoy.

436

Mmmm…Pencil pusher… He could be an Air Traffic Controller seconded to the duty due ill health or an Operations Officer seconded …not necessarily the usual pencil pusher as you assumed.

One could avoid the NT property… :smiley:

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437

Where is the fun in that though :wink:

Like you would if u wanted to fly over my house (or yours) take off from some common land (not the bit that I own) and keep VLOS, isn’t it as simple as that ?

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438

Interesting find…

cuius est solum eius esse usque ad coelum et ad infernos
“whoever owns the soil, it is theirs up to heaven and down to the depths”

Well, to answer the question specifically is probably no one does! The CAA as the regulator of the airspace is responsible for the ‘rules of the road’ and such rules are passed as laws by the legislator, to ensure that safety is always paramount. The airspace above my property question is really, where does my freehold property ownership start and where does it finish?

It does raise an interesting point on ownership of airspace. If you own the property freehold, you also own some airspace above it, and this is your Air Property. In Wales and England, this ownership does not extend without limit, however (if you are in Scotland land ownership runs ‘from the sky to the centre of the earth’).

The 1977 High Court ruling in the case of Bernstein v. Sky Views and General Ltd recognised to accommodate the demands of modern aviation that restrictions must be placed on the rights of an owner in the airspace above their land to ‘such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it’. Above this point, there is no ownership of the airspace although users must abide by the regulations laid out by the CAA (in the UK).

Supplementary to the ‘Airspace question’, freehold property owners have a right to claim a portion of the airspace above their properties under the laws of “trespass” or “nuisance” if they believe their right in law to safe and quiet enjoyment is infringed

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439

Nobody owns airspace. Want to try? File an airspace claim with the Land Registry and see what happens. You can only register ownership to land.

So what about Bernstein and section 77?

These provide a defence against trespass. Trespass is a general term relating to infringement of somebody’s personal rights, in this case the right for a landowner to reasonable enjoyment of their property. It is a civil tort i.e. not a crime (there are some trespass offences that are criminal, but not what we’re discussing here).

If you are flying above anyone’s land, you may be trespassing, unless section 76 gives you a defence. The landowner can take you to court for damages caused by nuisance, or to seek an injunction to prevent you repeating the trespass. All landowers have this right, including the National Trust, although in practice it will be incredibly difficult to enforce - they may not be able to identify the drone pilot, and proving sufficient nuisance to result in damages will be a challenge.

As noted, there are no hard boundaries to this. A court will take a view on what is “reasonable” for the landowner to expect, and what is “reasonable” regarding the flying height. It’s anyone’s guess what they’ll conclude.

None of this has anything to do with the NT byelaw, which is an entirely separate criminal law. It is badly worded and you will be at the mercy of a court’s interpretation on both the conveyance section 11; and the nuisance section 24. The ANO, drone code etc are of no relevance as they do not grant you any “rights” about flying, they only set out boundaries beyond which you are committing a crime. The byelaw stands alone. It has a legitimate purpose so it’s not likely any court will set any part of it aside.

Unless someone is going to pursue this in court, through to Appeal, there’s little more to be said. People are just guessing what a court will conclude. NT will not be changing their byelaw without the advice of lawyers, and lawyers will advise them to keep in place anything they could use to prevent disturbance to people visiting their sites.

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440

So …

Scenario 1
Taking off from some land outside of the NT property, I fly at a ‘reasonable’ height above the NT property, but without their express permission.

  • Whilst I may be trespassing, or in the opinion of the NT causing a nuisance, a civil action against me cannot succeed due to the defence afforded in section 76 Civil Aviation Act.

  • They can still bring a criminal prosecution against me as I am breaching their bylaws by flying over their land without permission. And as section 76 only provides a defence against civil action, it’s about as much use as a chocolate teapot.

Have I interpreted that right?

Extending that to other landowners who don’t have bylaws, but do have policies against drone flights over their land

Scenario 2
Taking off from some land outside of the landholders property, I fly at a ‘reasonable’ height above the property, but without their express permission.

  • Whilst I may be trespassing, or in the opinion of the landowner causing a nuisance, a civil action against me cannot succeed due to the defence afforded in section 76 Civil Aviation Act.

  • Because their policy is not criminal legislation, they can only bring a civil action against me which would fail (see above)

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441

:joy:

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442

Additionally due to the bylaws could it be assumed that NO aircraft at any height may fly over NT land. Could prove an interesting case.

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443

I believe so. For the first bit you are using the same argument as British Airways would. If it works for them, why not you? However, I’d suggest it’s not clear if you are breaching their byelaws, and I’d compare with British Airways again. I’d happily argue in court that you were not doing something against their byelaws (I’m not a lawyer, before you get your wallet out!)

I agree, subject to the court confirming your height was reasonable, of course. This seems to be the whole point of s.76.

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444

So if I only fly for two minutes I’ll be OK?

:grin:

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445

Hand up in the air here, I’m not seeing any antagonising prose in anyone’s emails? I see a lot of people trying to assertively gain clarity from the CAA / National Trust, but there’s nothing I’d call antagonising.

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446

Hope you did the “silly” one way system ! beutiful spot were there in June.

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447

People see things different ways, if i received that id be putting you on the spam filter immediately and probably looking into how to increase restrictions.

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448

Unfortunately not everyone is that sensitive.

Also public facing organisations don’t have that luxury.

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449

Okay then. I guess there’s always an “average” though to opinion - a general consensus as to what is an acceptable opinion, and I’d say mine filters in close to that, based on the responses I received to my comment. Either way, as has since been pointed out the CAA don’t have the luxury to be sensitive to the tonality of a politely written email.

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450

As a fellow essential tremor sufferer you have my sympathy. My worst side is my left, I’m right handed but still a real handicap to photography and also drone piloting.

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451

Thanks for the sympathy mate, same goes to you. My worst side is my right, being right handed makes it worse. Flying a drone’s not too bad, the tremors are worse when my hand is lifted up (drinking tea’s always a faff especially if the cup’s full, and makes eating soup or peas a messy job!). I’ve learnt to hold a fork or spoon in a fist type grip, but people tend to give you funny looks!

John

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