Can landowners prevent drones from trespassing over private property?

Landowners may now be able to prevent ‘persons unknown’ from trespassing on private property with a drone, thanks to a recent landmark judgment secured by our property litigation team, working alongside barristers from Gatehouse Chambers. 

We believe that this is the first case in English legal history to find that drones are causing trespass — and the case may have implications for future drone delivery services by the likes of Amazon.

In Anglo International Upholland Ltd v Wainwright [2023] 5 WLUK 613, the High Court granted a quia timet interim injunction against “urban explorers” who were trespassing on our client’s abandoned seminary building in Lancashire.

Here, our property litigators Helena Davies and Oskar Musial and Gatehouse Chambers’ Laura Tweedy and Gemma de Cordova explore the court’s finding that continuing to fly a drone over private property amounted to trespass.

Drones and trespassing

It’s no surprise that a number of young urban explorers wanted to explore our client’s building. The old Catholic Seminary is a historic treasure. Of course, this was trespass — but let’s not worry too much about the semantics for now. They also flew drones over the site and took videos and photos which were published on social media — glamourizing the site and its intrusion, which was in turn encouraging others to trespass.

The landowner had taken many steps to try to prevent the trespass, including on-site security and a perimeter fence — but to no avail. A claim was therefore brought for trespass and an interim injunction to prevent it, which was granted by the High Court in May 2023.

The law on drones is relatively new, given that drones only started to gain popularity over the last decade or so. Whether there can be trespass by drones is also a hot topic, in light of Amazon’s announcement that it intends to carry out drone deliveries in England by the end of 2024 — something that’s already underway in the US.

The key provision is section 76 of the Civil Aviation Act 1982, which states that there is no trespass “by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable…” (emphasis added) (s76).

Decision and reasoning

In granting the injunction against persons unknown and one named urban explorer in AIUL v Wainwright and Persons Unknown, His Honour Judge Bird — sitting as a Judge of the High Court — expressly found that any future flying of drones over the site would amount to trespass. The Judge assumed that s76 applied to drones and that the drone operator had complied with the requirements of Air Navigation Order 2016 (SI 2016/765), without making findings on the specific elements that must be satisfied to benefit from the protection of s76.

The Judge then went on: “It follows (if the drone flies at a height above the ground which having regard to the wind, whether and all the circumstances of the case is reasonable), that by operation of the statute, the simple act of flying over the college site does not give rise to a claim in trespass. I do not regard section 76 as barring any interim relief in respect of drones on the facts of the present case. The basis of complaint is not the simple act of flying, but rather what is happening during the flight. Photographs and videos taken by cameras mounted on drones facilitate and encourage further trespass and potentially endanger life. Such footage and photographs can be used to work out new ways to enter the site.  The only reason to fly a drone over the site is to facilitate trespass in the way I have described. Alternatively, if the specific use of the drone is not sufficient to warrant interim relief for the reasons set out above, then flying a drone so that footage can be taken means, in my judgement, that its height above ground could not be said to be (in the language of section 76) “reasonable”. It would follow that section 76 has no application and so the flight would be a trespass. In my judgement either because of the use to which the drone is put (if section 76 applies) or the trespass (if section 76 does not apply because the height of the drone is not reasonable), it is appropriate and proportionate to make an order preventing drone flights at the site.”

The Judge’s logic was based on the reasoning that drone use was encouraging further trespass. The use of the drones involved not only their flight but also the capturing of images, which were then used to promote further trespass. Due to the use to which the drones were being put, s76 didn’t apply. Alternatively, the Judge found that if s76 did apply, the height of the drones wasn’t ‘reasonable’. 

This is an interesting stance, since the Judge didn’t consider the actual height of the drone. Indeed, no evidence was submitted by the claimant as to the height at which these drones flew over the site.

Previous case law

If we look at previous case law regarding drones and trespass, we find… well, not much. However, if we consider trespass from the sky to private land, there are a number of cases — including one in which a crane that went over a garden amounted to trespass (Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 284 EG 625), a case of a manned aircraft flying over people’s houses to take photos not amounting to trespass (Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479) and a case of an advertising sign projecting four inches into the air-space of neighboring land amounting to a trespass but not a nuisance (Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 Q.B. 334).

In Laiqat v Majid [2005] EWHC 1305 (QB), the court made clear that trespass could occur in airspace unless the interference was at such great height that it didn’t interfere with the claimant’s airspace (on grounds of anticipated ordinary use and enjoyment of one’s land). 

The case of MBR Acres v Free the MBR Beagles [2021] EWHC 2996 (QB) is the closest the court has previously come to considering drones and trespass, but it skirted the issue. In that case, the High Court considered an application for an interim injunction against protestors demonstrating at sites involved in animal research. 

At 111, the court said:

“The First Claimant also seeks an injunction to prohibit the flying of drones over the

…Site … Ms Bolton submitted that the First Claimant was entitled to restrain this activity as an alleged trespass. Such a claim is not straightforward. The claim is not based on alleged harassment or nuisance caused by the drone flights (cf. Fearn -v- The Board of Trustees of the Tate Gallery [2020] Ch 621). There is no suggestion in the evidence that the action of drones being flown over the site has caused harassment to anyone, is dangerous or risks causing harm. Indeed, it appears that the First Claimant (and its staff) were unaware of drones flying over the site until footage apparently captured by them appeared online, including in the Mirror Video. The question whether the flying of a drone over a piece of land (and if so, at what height) is an actionable trespass appears, surprisingly, to be one that the law has yet definitively to answer.”

At 113, the court went on: 

“This is an interesting question, and it is one that is best left to be resolved in a case when it actually falls for determination. I venture to suggest that the law of trespass may not be the only relevant tort, and that it is better for the coherent development of the law if the full range of potential causes of action is considered. It can hardly be doubted that the law would provide a remedy against someone who used a drone to obtain (a fortiori, to publish) footage of a person getting undressed in the bedroom of his/her home. The entitlement to a remedy would not depend upon whether the drone was trespassing in the airspace of the homeowner’s land. It would appear to be a straightforward claim for misuse of private information.”

Consequences for drone operators

AIUL v Wainwright and Persons Unknown was an undefended interim injunction — so it wasn’t fully argued and was, of course, quite fact specific. However, it was a High Court decision, which binds the County Court.

Those in the business of flying drones (and those advising them) should be aware of this case — not least as a reminder to drone operators to take the appropriate steps to gain the protection of s76. In addition, drone operators could perhaps turn their minds to the height that their aircrafts are flying at and provide some prior justification as to why they consider that height to be reasonable in the circumstances given in s76.

Those operators who aren’t solely flying drones but are also putting those drones to other purposes need to consider whether doing so takes them outside of the s76 protection and into the realms of trespass. Could it be possible to seek the consent of landowners to try to mitigate any problems? How can Amazon make sure that it doesn’t trespass over land with its first UK drone deliveries?

This judgment — combined with the Supreme Court’s relatively recent decision in Fearn v Tate Gallery [2023] UKSC 4 (which held that the taking of photographs amounted to a private nuisance) — seems to show the court’s increasing willingness to lean towards cracking open the dark lacuna of privacy rights in England.

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