Various types of unmanned aircraft, commonly referred to as drones, have become available in the
past few years and are being used for private leisure purposes as well as commercial aerial work.
Drones used for leisure are generally lightweight, may be equipped with a camera, and are now
relatively inexpensive (starting prices below £50) and readily available for purchase from shops
and on-line retailers. There is little data about the numbers in users. For professional usage, the
range of applications is wide and increasing, including surveillance, data gathering, film production
(TV, marketing, promotional purposes), infrastructure inspection, conservation management, and
agriculture and forestry operations. The size, level of sophistication and specification of those
devices reflects this range of applications.
Drones in relationship to access rights
With the growth in use as a leisure activity, there has been debate about the rights and
responsibilities that apply to the operation and use of drones. Concerns expressed have included
perceived problems that the activity may pose over public safety, privacy, and potential disturbance
to people, livestock or wildlife. On the other hand, the activity clearly interests and motivates a
segment of the population to spend time in the outdoors, with a fresh perspective on their
surroundings. There is debate over legal definitions, and also over the practicalities and
requirements for supervision and enforcement through the general civil powers of the Land Reform
(Scotland) Act, as compared to through other existing statutory regulatory mechanisms and
The use of drones as a leisure activity can be interpreted as falling with the scope of ‘recreational
purposes’ in Section 1(3)(a) of the Act. There has been discussion around whether the exclusions
described in S9(f) on “being on or crossing land in or with a motorised vehicle…” are or are not
relevant to the issue. While drones are motorised, it is not fully clear that they are a ‘vehicle’ with
the meaning of being a conveyance. It has also been noted that a user could be flying a drone for
recreational purposes while standing on land not requiring access rights, like a road or the
foreshore, but nevertheless overflying land where access rights apply.
The Code makes no specific mention of drones, although if it was taken to be within the scope of
access rights, drone users would be required to undertake the activity in a manner that is
consistent with the Code’s three guiding principles of respect for other people, caring for the
environment and taking responsibility for your own actions. The closest reference comes in 2.14,
where the Code suggests that “the use of powered model craft” is out-with access rights, but the
activities envisaged at that time are not directly analogous to those involved in the use of drones,
with the line taken by the Code being guided by the then current practice of powered model aircraft
being most frequently associated with club or group use of facilities or sites.
Access rights must be exercised in ways that are lawful and reasonable. Participation in several
recreational activities is within access rights up to a certain level, beyond which legislative or
regulatory controls exist which must be complied with, and where not doing so would then put that
activity outside the access rights. For instance, being accompanied by a dog is clearly within
access rights, but there are a range of statutory controls if dog-walking crosses boundaries into
areas of dog control, sheep worrying or fouling. Similarly, nature study can normally pursued within
access rights, but if it crosses a boundary into damage or disturbance of wild birds and animals,
then statutory sanctions come into effect (see Annex One of the Code).