Drones: things to think about before taking flight

Drones are nothing new. In fact, they have arguably been around since 1849, when balloons carrying explosives were used in the blockade of the Republic of Venice. However, it is only recently that drone technology has seen an uptake in non-military sectors. Yet, as Stephanie Panzic explains, while commercial drones are only now entering their second decade, they are already projected to have an increasingly beneficial impact on the UK economy and society. 

PWC recently predicted that, by 2030, there could be 76,000 drones operating in UK skies and 628,000 jobs related to drones, resulting in a £42 billion increase in the UK GDP and £16 billion in net cost savings to the UK economy.1

In the construction sector, it is easy to see how drones can help projects to be cheaper, quicker and more accurate. Common uses include:

  • Initial site surveys;
  • Progress monitoring;
  • Site security and safety;
  • Mapping and 3D modelling; and
  • Transporting goods and reaching dangerous or difficult to access areas.

While we are still in the early stages of drone use, it has been clear from the outset that such use cannot be unlimited. One only needs to consider the Gatwick Airport drone incident of 19–21 December 2018, which affected around 140,000 passengers and 1,000 flights, to appreciate the danger and disruption that can be caused by such technology. It is therefore unsurprising that UK and EU legislation has been introduced, and is still being developed, which places tight restrictions on drone use.

The Air Navigation Order 2016

The primary source of restrictions on drone use in the UK is the Air Navigation Order 2016 (“the ANO 2016”), including the recent drone-specific amendments made by the Air Navigation (Amendment) Order 2018. EU regulations have also been developed, although the relevant implementing regulations covering drone use will only become applicable from June 2020 (subject to the UK’s status in the EU).

What is a drone?

While “drone” is the most commonly understood term for the subject of this article, the ANO 2016 does not use this term. Instead, it uses the term “small unmanned aircraft” (SUA), which is defined as:

“any unmanned aircraft, other than a balloon or a kite, having a mass of not more than 20kg without its fuel but including any articles or equipment installed in or attached to the aircraft at the commencement of its flight”.

In this article, it is assumed that the drone in question is equipped to undertake some sort of surveillance or data acquisition (for example, it is equipped with a camera – whether that is being used or not). If the drone possesses no such equipment, fewer regulations apply. It is also assumed that the drone has a mass of 7kg or less. Drones of greater mass than this are subject to additional restrictions.2

Restrictions on use

Drones are currently subject to a specific set of conditions contained in articles 94, 94A, 94B, 94G and 95 of the ANO 2016. 

Article 94G introduces two people with primary responsibility for safe drone use: The “SUA operator”, who will usually be the owner of the drone (such as a construction company or a specific drone subcontractor) and the “remote pilot”, who is the person actually flying the drone.

Numerous restrictions apply to such individuals, including:

  • The remote pilot may only fly the drone if reasonably satisfied that the flight can safely be made (article 94(2)).
  • The remote pilot must maintain direct, unaided visual contact with the aircraft sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions (article 94(3)). In the UK, the maximum distance normally accepted as possible with unaided visual contact is 500 metres horizontally from the remote pilot, provided the drone can still in fact be seen at this distance.
  • Comprehensive restrictions apply on flights that are over or near aerodromes (article 94B).

The ANO 2016 also prohibits drone use in the following instances, unless permission is obtained from the Civil Aviation Authority (“CAA”):

  • Flights for the purposes of commercial operations, which includes any flight by a small unmanned aircraft performed under a contract between a SUA operator and a customer, where the customer has no control over the remote pilot (articles 7 and 94(5));
  • Flights higher than 400ft from the surface (article 94A);
  • Flights over or within 150 metres of any congested area or an organised open-air assembly of more than 1,000 persons (article 95(2)); and
  • Flights within 50 metres of any person, vehicle, vessel or structure which is not under the control of the SUA operator or the remote pilot (article 95(2)).

In light of the above, it is likely that a person or company in the construction sector will require a permission from the CAA before they can use drones onsite. In many cases, the height and distance restrictions are simply not feasible for construction sites operating in occupied areas. The “commercial operation” restriction is less clear cut and could benefit from clearer definition, but has meant that some companies prefer to obtain CAA permission even when operating within the height and distance restrictions but arguably outside the “commercial operation” restriction.

An “exemption” from the CAA must be obtained for flights that fall outside any ANO 2016 requirements other than those for which a “permission” is required, such as the requirement to maintain direct, unaided visual contact.

Applications for permissions and exemptions

If the intended drone use falls outside the scope of permitted use provided by the ANO 2016, the SUA operator may apply to the CAA for a permission or an exemption. In many cases, such applications are very straightforward and relatively inexpensive. Applications are made using the application process on the Unmanned Aircraft System webpage of the CAA website.3 Once obtained, a permission is valid for up to 12 months. 

Available permissions fall into two categories:

  • Standard permission – allows commercial operations and operations within a congested area. Requires evidence of pilot competence, evidence of appropriate insurance cover, and an operations manual detailing how the flights will be conducted. At the time of writing this article, an initial charge of £253 applied to such permissions.
  • Non-standard permission (or exemption) – all other types of flight. In addition to standard permission requirements, this requires an operating safety case to be submitted to the CAA. An initial charge of £1,771 is applied to such permissions.4

New requirements 

From 30 November 2019, articles 94D and 94F of the ANO 2016 will apply, introducing further requirements for SUA operators and remote pilots. The effect of these articles is that remote pilots and SUA operators will have to apply to the CAA and: 

  • Pass an online test to get a flyer ID (for remote pilots); and
  • Register for an operator ID and label any drones with that operator ID (for SUA operators).

Notably, while remote pilots can be any age (although children under 13 can only apply to the CAA with a parent or guardian present), at present SUA operators must be aged 18 years or over.

Penalties

Failing to follow any of the above regulations carries the risk of a fine on summary conviction. The maximum fine will either be £1,000 (level 3 on the standard scale) or £2,500 (level 4 on the standard scale), depending on the article breached:5

  • £1,000: Articles 94D or 94F (failing to follow registration requirements applicable from 30 November 2019).
  • £2,500: Articles 94 (includes failing to maintain direct, unaided visual contact with the drone and flying a drone for commercial operations without permission), 94A (failing to fly within 400ft of the surface), 94B (aerodrome restrictions) or 95 (includes flying over or within 150m of a congested area or within 30m of a person).

While such fines are not insignificant, more serious penalties can apply if a drone is used to endanger a person, property or an aircraft. For example, article 241 (recklessly or negligently causing or permitting an aircraft to endanger any person or property), carries a fine and/or imprisonment for a term not exceeding two years. Criminal legislation could also apply, depending on the circumstances.

A final word: other considerations

While adherence to the ANO 2016 is of utmost importance to ensure the safe use of drones on construction sites, there are also a number of other matters to consider before flying a drone: 

  • Data Protection: As most drone use will involve data capture and use (usually video footage and photographs), it will be important to ensure that such activities comply with the relevant privacy and data protection laws. In many cases, the restrictions and requirements will mirror those applicable to CCTV, for which a useful Code of Practice has been published by the Information Commissioners Office.7 However, the Code has not been updated since the General Data Protection Regulations and Data Protection Act 2018 came into force. These new enactments will also need to be considered by drone users, and an update to the CCTV Code of Practice is expected.
  • Insurance: Drone operators must comply with Regulation (EC) 785/2004, which requires insurance coverage for drone flights unless the drone is being used for sport or recreational purposes only. 
  • Other regulations and restrictions: The ANO 2016 and the other enactments mentioned above may not be the only laws applying to a particular drone flight. For example, the Royal Parks Regulations prohibit the flying of a drone in the Royal Parks where a constable has asked a person to stop flying it or if a notice is displayed in a park stating that it is a prohibited act. 

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Key contact

Stephanie Panzic

Tel: +44 (0)20 7421 1986