Laura Tweedy and Gemma de Cordova, together with Oskar Musial and Helena Davies of Brabners Solicitors, consider the circumstances of a recently reported High Court decision (AIUL v Alex Wainwright and Persons Unknown [2023] 5 WLUK 613) granting a quia timet interim injunction against 'urban explorers' who trespassed on an abandoned seminary building near Manchester.
This is part 1 of a 4-part series considering the interesting aspects of AIUL v Alex Wainwright and Persons Unknown, in which we first look at the court's finding that continuing to fly a drone over private property amounted to trespass.
Facts
Once upon a time, near Manchester, there was an old haunting dilapidated Catholic Seminary building and a number of young urban explorers who, quite understandably, were fascinated by it. The urban explorers were determined to enter and explore this historic treasure. Of course, that was trespass, but let's not worry too much about the semantics for now. What they also undertook, was the flying of drones over the site, taking videos and images and using them on social media, glamourizing the creepy site and its intrusion, which in turn was 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. Therefore, they brought a claim for trespass and for an interim injunction to prevent it which was granted by the High Court in May 2023 (AIUL v Wainwright and Persons Unknown [2023] 5 WLUK 613).
Drones and trespass
The law on drones is relatively new given that drones really only started to become popular over the last 10 years 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 Amazon reveals first photos of the new Prime Air delivery drone (aboutamazon.co.uk) and which it has already started in the US: Amazon drone delivery is coming to Arizona (aboutamazon.com)
The Legislation
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, ("the Judge") 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 which must be satisfied in order 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 the flying of them but also the capturing of images which were then used to promote further trespass. Due to the use to which drones were being put, s76 did not apply. Alternatively, the Judge found that if s76 did apply, the height of the drones were not reasonable because they were able to capture photos and videos which were then being used to encourage further trespass. This is an interesting stance because the Judge did not 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). Rather, the fact that drones were able to capture videos and images which were being used to encourage trespass was sufficient to render the height of the drones "unreasonable" within the meaning of s76, and was also trespass.
The case law
If we look at the previous case law regarding drones and trespass, we find... well, not much. If, instead we consider trespass from the sky to private land there are a number of cases, including a case of a crane going over a garden amounting 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 did not 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 was considering 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."
The consequences
AIUL v Wainwright and Persons Unknown was an undefended interim injunction, so not fully argued and, of course, quite fact specific. However, it was a High Court decision which of course 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 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 are not solely flying drones, but also putting those drones to other purposes, need to consider whether doing that 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 it is not trespassing 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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