Good evening, I recently took off from a field where I had permission to photograph some of the HS2 works. Afterwards I chatted with the family who gave me permission and it came up in conversation that they are only tenants… and the landowner is HS2. Am I then trespassing, and can I use the photos commercially? In short, am I allowed to fly from the land?
I am also keen to TOAL from somewhere in the Windsor Great Park (away from the palace) and should I find a tenant it’d be interesting to know the law!
1 Like
If it were me …
If they rent the property/land, then their permission is sufficient.
The northern tip of the park falls into a recently added (Jan-22) restricted area. The Windsor Great Park website also has a no drones policy - similar to NT …
The use of drones is strictly prohibited anywhere within Windsor Great Park including the designated flying area at Stag Meadow and also across the wider Windsor Estate including Swinley Forest.
That said, there are no other restrictions on Drone Scene, so I would TOAL from outside the park and then fly above at a safe height.
1 Like
As far as it goes for land ownership and possession permissions this is a misunderstanding a lot of people make - well beyond drone flying and generally understanding it.
A tenant is in possession of land. Legal possession of land is effectively land ownership for the term of possession. For the duration of their possession of the land they are the sole determiners of who uses the land and for what purpose. A lot of people don’t realise this - but a tenant can even declare their landlord a trespasser, and by default they are without giving notice and getting permission to enter the property or land by the tenant(s). It can be a condition of the tenancy agreement that the land/property not be used for certain purposes but that is: 1) between the tenant and the landlord if the tenant has agreed for it to be used for a purpose which is against the conditions of the tenancy agreement, and 2) very unlikely to include provisions for takeoff and landing of UAVs.
I think the issues of trespass and the ability to use photographs are separate.
You may, or may not, have been trespassing.
But my thought is that unless you have signed an agreement with somebody (or there’s an especially weird byelaw, like with NT), you are under no obligation to them about what you do with your photographs.
Example: the photographs linked below were taken while I was very definitely trespassing. I don’t think the landowner has any rights other than to remove me from their land:
https://greyarro.ws/t/urban-exploration-urbex/20118/5?u=kvetner
(Note: link is to section of the forum that is members-only).
Trespass being a civil issue (except aggravated trespass which has a different legal definition), the civil liability associated with trespass is related to the benefit the trespasser took from it. So if you wanted to sell photographs taken while trespassing, the landowner can sue you for the commercial benefit of those photos. If you’re only posting them to social media and take no financial benefit then the civil liability is likely to be peppercorn and not worth pursuing for the landowner.
Trespass as part of your operation obviously can invalidate any insurance you have though.
1 Like
Noted! Technically, it’s the loss they incur, not the benefit you receive: they’d have to argue in court that they have experienced a genuine loss. I’d be interested if there’s any case law on that.
With trespass it’s a bit more complicated. A landowner or someone in legal possession of land (such as a tenant) has control over that land and a right to determine any commercial benefits taken from use of the land. If the landowner would have been entitled to a cut of the commercial benefit or value of photography through a contract then that is a loss.
1 Like
Sorry for my delayed thanks - but thanks! It has been educational reading your answers and it is intersting what a grey zone this can be. The interesting takeaway for me is the rights of the tenant which now are clear to me although a tenancy agreement with HS2 could well be more watertight than the norm. A drone ban at Windsor Great Park is understandable but a shame.
Doubtfull I’ll ever make a penny on my photos but it gives me the excuse to plan and fly plus meeting landowners/tenants has mostly been not only pleasant but interesting too.
Safe flying everyone!