Sorry if this has been covered before. I had a flying lesson with Phantom Flight School and the instructor told me that you can fly from any public footpath, byway or bridleway, as long as there are no bylaws to the contrary. Basically anywhere you’re not trespassing. What is the situation with open access land, where there are no clearly defined footpaths but you’re allowed to walk there?
I also read somewhere when the new regs came out that you can fly from a parking area at the side of the road, as long as you are as sure as reasonably practicable that the flight can be made safely.
Any thoughts (before I get myself into bother!).
There are no easy answers. I contacted one of the UK’s specialists in rights-of-way law last year (he literally wrote the book), and he was not willing to give an answer other than “it depends”.
But … assuming you’re talking about England and Wales (it’s different in Scotland):
A right-of-way (and also a public highway) is essentially a defense against being accused of trespass. You have the right to pass along it, and to stop, and case law suggests that there are few things you can’t do while stopped, so long as they are not breaking any other laws. So: you can stop for a picnic, or to take photographs. You can’t obstruct the path or highway while stopped.
If you were walking along a right-of-way on National Trust property, their bye-laws still apply.
“Rights of way” and “public highway” can be designated either due to historic use, or under statute law, but the law around their use seems to mainly arise from case law e.g. DPP v Jones:
I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass
Rights for what you can do on Open Access land are more closely defined in section 2 of the Countryside and Rights of Way Act 2000:
Any person is entitled by virtue of this subsection to enter and remain on any access land for the purposes of open-air recreation, if and so long as—
(a) he does so without breaking or damaging any wall, fence, hedge, stile or gate, and
(b) he observes the general restrictions in Schedule 2 and any other restrictions imposed in relation to the land under Chapter II.
I think flying a drone is “open-air recreation”, on the basis that standing around using any camera is.
Chapter II allows all sorts of restrictions to be placed on the use of the land by relevant owners or authorities, e.g. to protect flora, fauna etc.
Schedule 2 is a long list of incredibly evil things like carrying metal detectors, carrying a cat, swimming in a river, picking a flower etc (no seriously, they’re all covered, look it up). The three that seem most relevant to me are:
intentionally or recklessly takes, kills, injures or disturbs any animal, bird or fish,
without reasonable excuse, does anything which (whether or not intended by him to have the effect mentioned in paragraph (q)) disturbs, annoys or obstructs any persons engaged in a lawful activity on the land,
engages in any activity which is organised or undertaken (whether by him or another) for any commercial purpose.
Tl;dr:
- I think you can legally fly a drone from a public right of way or from the side of a public highway so long as you don’t obstruct it, and you aren’t breaking any other laws or by-laws or causing a nuisance (in its legal sense, i.e. disturbing landowners in the reasonable use and enjoyment of their land)
- I think you can legally fly a drone on open access land so long as it’s not for commercial reasons and you don’t bother anyone or disturb wildlife or livestock, and you aren’t breaking any other laws or by-laws (e.g. in National Parks)
None of this is simple though. Angela Sydenham’s book on the law around rights-of-way and access to land is 669 pages long and costs £125. You can be confident that none of the landowners, police etc understand it either, and arguing over the details of the law with them is pointless unless you’re planning to hire a real lawyer rather than rely on Random Internet Dude.
I’ve flown from Rights of Way (and other public paths), and from my car parked at the side of the road, and I’d happily fly from access land. But I’d do what I can to keep out of people’s way and give them as little reason as possible to want to report me.
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Thanks for that well researched answer! I think the last paragraph is the golden rule!
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I like this bit better
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If your drone had to land, for whatever reason on private land would you have any legal rights to recover it?
No. It’s still trespassing and “getting your ball back” (the commonly used example) is not a legal justification.
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Thank you for your piece. Very informative. I have to say I do most of my rake offs from footpaths/bridleways. To date never had a problem.
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And that my flying friends is why kvetner is held in such high regard by myself and many others. @milkmanchris is also held in high regard for his succinct view on life and flying (better to ask forgiveness than permission)
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I visited Dartmoor recently and I had my drone with me (DJI mini 2). I reached a nice spot and I thought it would be a good idea to fly my drone and as far as I could tell there was no one near me. I was happily flying my drone when I noticed this guy close to me. He was looking at the sky and he asked me… what is that noise ? I told him it was a drone and then he told me that what I was doing was ilegal and that he could sue me. He told me I was in open access land and the laws are very clear regarding the use of open access land and that drones were not allowed in such areas. I didn’t even know at the time what open access land meant so I didn’t have much of an answer and It seems to me that the answer is that it’s probably ok but it is better not to get caught by someone who doesn’t like drones. I hate this ambiguity .
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Sadly, the only way to get a more definitive answer is to let them take you to court and see what happens. And after the magistrate in the first court gets the law wrong, to take it on appeal to a higher court. And since that’s all impractical and unaffordable, we’ll never actually know the outcome … and we just have to live with that and crack on with life.
As I understand it, the CROW Act gives a statutory defence against such a civil suit, on designated Open Access land, so long you follow the various restrictions it sets out, like not carrying a cat (CROW Act Schedule 2, clause 1(c)) or picking a flower (Schedule 2, clause 1(l)). I still can’t see that it says anything about drones, but some Open Access land is covered by other bye-laws, like in the Peak District National Park where it definitely is illegal to fly a drone on their Open Access Land. And yet: I’ve flown a drone there. I just kept well out of people’s way.
Dartmoor is a special case. The Dartmoor Commons Act 1985 gives a statutory right of access for “open air recreation”, over and above what’s in the CROW Act. But there are also the Dartmoor National Park byelaws, which prevent terrible things like throwing annoying paper aeroplanes (Section 13(2)) or picking up a pebble without due cause (Section 14(2)), etc.
The byelaws prohibit the release or control of “any power-driven model aircraft” (Section 18(2)). I reckon any court will rule that includes a drone, given the further explanations in 18(3) (your aircraft is electric-powered and under 5kg weight, probably).
So: if you were in the Dartmoor National Park boundary, I think flying a drone is probably breaking the byelaws. Random Walking Bloke could argue that as you are committing a criminal offence under the byelaws, therefore under the CROW Act, Schedule 2, clause 1(d), your protection against private legal action no longer applies. And then if he is the underlying landowner, he could sue you for private nuisance, defined roughly as “affecting the landowner’s reasonable use or enjoyment of their land”. I’ve no idea how a court would determine damages for the temporary irritation caused by a buzzy little drone, but no doubt that’s where the lawyers get to earn their keep.
Does that all sound convincing? Because that’s 15 minutes with Google - I’m no legal expert and my strong advice would be: if you want to fly on Dartmoor again, just keep well away from busybodies and the easily annoyed.
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Thank you for your answer. I hate to admit it but I was probably in the wrong. I have gained something though from this unpleasant experience and is that I have become more aware of the risks involved in flying a drone and the need to be extra careful.
You personally no.
However they ARE legally obliged to return it to the owner, without damage or fine or anything else.
They cant keep it, cant destroy it and when the owner is identified have to legally return it as soon as practical.