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Is it a bird? Is it a plane? What can landowners do when drones trespass?

Insight

drone

When contemplating trespass, landowners are generally most concerned by the possibility of ramblers straying off public footpaths, protestors making a stand or vandals causing damage. However, the threat now comes from the sky too. The use of drones is becoming more common, so much so the Department for Transport believes that “crime-fighting” drones and care deliveries via drone could be a reality by 2030 [1]. It is also highly likely that the use of drones by hobbyists and private individuals will also increase.

Rural estates in particular are a magnet for drone users seeking impressive aerial footage of the grand homes, fixtures of historic interest and areas of natural beauty situated on them. In Anglo International Upholland Ltd v Wainwright [2023] 5 WLUK 613, a “quia timet injunction” against an imminent but not yet committed act was granted in favour of a landowner. The injunction was made against Mr Wainright, a regular trespasser, and other unknown “urban explorers” who wanted to use drones to capture footage to be posted on social media, thus encouraging others to trespass. The use of social media seems to be influential in similar cases. Infamously, a private security team was brought in to protect Drayton House in Northamptonshire (the setting for the film Saltburn) after TikTok posts shared information about how to get to the property, causing a spate of trespasses [2].

As drone use increases, cases like Anglo International are likely to become more common and landowners may need to defend their privacy on new frontiers.

What happened in Anglo International?

The claimant owns a 320-acre estate encompassing a large but dilapidated seminary built in the 1880s. Issues arose in relation to the defendants Mr Wainwright and “parties unknown” regularly trespassing, and to drones being flown over the seminary with photographs being taken. Some of the persons unknown had even taken to camping in the seminary. The claimant’s concerns were not theoretical. Those trespassing on foot were at risk of personal injury from the seminary’s dilapidated state. Significant sums had been spent securing the site, including the installation of a two-and-a-half-meter fence and the employment of security guards.

In the High Court, the claimant sought an interim injunction against Mr Wainwright and persons unknown to prevent them from entering and, crucially, from flying drones over the property.

The judge considered section 76 of the Civil Aviation Act which provides that there shall be no actionable trespass against the flight of an aircraft where the height is “reasonable” in all the circumstances. It was accepted by the court that a drone was, for these purposes, an aircraft.

In reaching its decision, the court deemed that the simple act of flying was not in itself a trespass. It was what happened during the flight that was the issue. The court concluded that flying the drone at a height from which photos and videos could be taken and used to facilitate and encourage further trespasses meant its height could not be said to be “reasonable”. On that basis, section 76 did not apply. An injunction was granted for two years.

How can landowners stop drone issues arising in the first place?

Anglo International does not supersede section 76. The case was fact-specific and it was the collection of photos/videos, combined with activities on the ground that persuaded the court to grant the interim injunction (interim because the court accepted the matter remedy could be developed as needed in the future of subject to a further hearing). It is also notable that there was no real opposition to the claimant’s application: Mr Wainwright was recognised by the court to have acted “responsibly” in relation to the proceedings, which the claimant acknowledged, and neither he or the “persons unknown” attended the hearing. Cases where draft orders are opposed could be more informative as to the future direction the courts are likely to take in such matters. 

Regardless, concerned landowners could consider the following to protect against trespass by air:

  • Identify what is attached to the drone. Can you see a camera? Can you find any footage being uploaded online? These could be evidentiary points to argue the drone use is not “reasonable” under section 76.
  • If photos/videos are shared online, what is the purpose? Is it simply a one-off post showing the natural beauty of a property? Or are specific points of interest being targeted, with regular videos being posted with a description of how access can be obtained?
  • Keep a diary of any trespass that has occurred and any associated loss or damage. Have incidents become more frequent since drone inference has occurred? Are you having to spend more on means to prevent against trespass (fencing, CCTV, alarms, manned security etc)?

As drone use becomes more common, injunctions will probably not be granted in instances of routine passing for future Amazon deliveries or one-off use by a private individual. But if what happens in the sky impacts what happens on the ground, the situation changes, and a more proactive approach to protecting the privacy and security of the land might be needed.

[1] The age of the flying taxi draws closer with the Future of Flight action plan - GOV.UK (www.gov.uk)

[2] Saltburn TikToker says trespassers at stately home 'a shame' - BBC News

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

© Farrer & Co LLP, July 2024

 

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About the authors

Jo Ord property lawyer

Jo Ord

Partner

Jo’s expertise is invaluable for organisations and individuals seeking to resolve or avoid property disputes of all types. She advises commercial entities and private clients.

Jo’s expertise is invaluable for organisations and individuals seeking to resolve or avoid property disputes of all types. She advises commercial entities and private clients.

Email Jo +44 (0)20 3375 7165
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William Johnson

Associate

William is a property disputes lawyer, who acts for a wide range of clients on a full spectrum of residential, commercial and agricultural disputes. He has a particular interest in acting for either landlords or tenants in residential possession proceedings.

William is a property disputes lawyer, who acts for a wide range of clients on a full spectrum of residential, commercial and agricultural disputes. He has a particular interest in acting for either landlords or tenants in residential possession proceedings.

Email William +44 (0)20 3375 7699
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