Developments in the law relating to drone use

MBR Acres Ltd and others v Curtin [2025] EWHC 331 (KB) (MBR) is procedurally complex and covers issues such as the right to protest, harassment and nuisance. This article focusses on airspace trespass in the context of drone flights. In particular, we consider how landowners could approach this type of trespass given the differing outcomes in this decision and Anglo International Upholland Ltd v Wainwright & Persons Unknown [2023] (Anglo), which we have previously considered here.

Background

Marshall Farm Group Ltd (Marshall), which is licenced to breed animals for testing new medicines, operates out of a countryside location known as the “Wynton Site” (Wynton). Since June 2021, a semi-permanent protest camp had been set up around 20-30 meters from Wynton’s entrance.

The claimants, who were connected to Marshall, reported that numerous drones were being flown over the Wynton. A protestor from the protest camp, Mr Curtin, was identified as a drone pilot who had posted footage from a drone flight on Facebook. As a result, the claimants sought an injunction against Mr Curtin flying drones at a height of less than 100 meters above Wynton. The injunction was also sought against “persons unknown” due to the claimants being unable to identify accurately the pilots on most occasions.

What did the court decide?

In support of their claim that the flying of a drone over their land amounted to a trespass, the claimants cited Bernstein v Skyviews & General Ltd [1978] QB 479. In that decision, the judge held that an owner’s right to the airspace above their land was restricted to the height necessary for the ordinary use and enjoyment of the land and structures upon it (the Bernstein Principle).

Based on the Bernstein Principle, the court concluded that Mr Curtin’s drone did not infringe on the claimants’ ordinary use and enjoyment of Wynton. Mr Curtin’s drone was flying around 50 meters above Wynton. At this height the drone would barely be visible to the naked eye and could therefore not interfere with the first claimant’s ordinary enjoyment of the land. Further, the desired 100-meter limit was “arbitrary” and not required to protect the first claimant’s enjoyment of their land. On that basis, the use of the drone was not a trespass.

The court’s comments in relation to the claimants’ case provide useful insights. The judge criticised the claimants for not obtaining expert evidence on the “critical issue” of the height of the drone use. In relation to their substantive claim, he also noted that the claimants were attempting to use the law of trespass to obtain a remedy unavailable in the law of trespass. In reality, the claimants were seeking to prevent filming or photographing Wyton.

The allegation of trespass by the drone against “persons unknown” failed on the basis that the claimants provided no evidence, other than one crashed drone, about the height of drone flight or possible future flight.

Links with Anglo?

In both cases, the claimants sought injunctions restricting drone flight against a specific individual and “persons unknown”.

In Anglo, the issue centred on preventing a physical trespass to a historic site situated on a private estate; in MBR it concerned a commercial entity dealing with protesters.

The test for granting the injunction in each case differed. In Anglo, the claimants relied on statutory protections set out in section 76 of the Civil Aviation Act 1982. Under s.76, there is no action in trespass if a drone is operated at a reasonable height. In MBR, the position was set out in common law that an owner’s rights in the airspace above their land depends on what is necessary for the ordinary use and enjoyment of the land.

So why was the claimant successful in Anglo but not here? The significance of the drone use in Anglo was what was happening during the flight, ie recording footage and its link to what was happening on the ground. Pictures and videos taken from the drone were being shared online to facilitate physical trespass that was already taking place. No such arguments were advanced in MBR; arguments about drone footage being used to facilitate potential trespass were deemed to be hypothetical.

How should landowners reflect on MBR?

Uncertainty continues for landowners in instances of airspace trespass. Trespasses will naturally be judged on a fact specific basis because they are a “tort”. Further, claims against “persons unknown” continues to be a germane and developing area of law.

However, the lessons for landowners set out in our consideration of Anglo are still relevant. And MBR confirms that reliably ascertaining the height of drone use is critical. Landowners should therefore consider instructing an expert in cases of problematic drone use: how high is the drone? Does that change? How often is it flown at certain heights? Doing so, could be key in putting them on the front foot in arguing that drone use is “unreasonable" under the Civil Aviation Act or that it breaches the Bernstein Principle.

Landowners should also consider if the remedy sought is the best way of protecting their interests. An injunction against trespass in Anglo was deemed an appropriate remedy, whereas the court held that remedies under privacy/harassment laws might have been more appropriate in MBR.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2025