Drone flying trespass over private property—how can you stop it?

Following the case of Anglo International Upholland Ltd v Wainwright and others [2023] and the increased popularity of drone flying, the law on trespass over land has been widened. The casecovered the question of trespass by drones over private property and the capturing and sharing of images.

What exactly constitutes ‘trespass’ in drone flying, and can you stop it? Trudy Rosevink, Solicitor in Coodes’ Commercial Disputes team, explores.

What constitutes trespass?

In recent years, you may have experienced drones being flown over your private property. In the case of agricultural land, drone flying by unknown third parties over livestock can lead to distress and injury. Often, this is done to capture aerial footage however the drone pilots may not have sought the landowner’s permission.

The tort of trespass to land is committed when a person performs an act that leads to them entering the land of another without permission or a justified reason. It’s important to note that it is not necessary to cause harm to the land in order for it to be considered trespassing. It is also not necessary for a person to know they are committing a trespass. Therefore, flying a drone over an area for the purpose of taking photographs without permission, is likely to constitute trespass.

Remedies for trespass

If drones flying over your property is a continuing occurrence, an injunction can be issued by the court. This can prevent further trespass on or, in the case of drone flying, above the property. Failure to comply with an injunction for trespass can lead to criminal sanctions. Any injunction ordered by the court needs to be served on the perpetrating party—often persons unknown. This can pose problems with ensuring valid service has been undertaken.

Additionally, trespass is actionable even without proof of damage. Therefore, the claimant is entitled to nominal damages, to be paid by the defendant. This is whether they have suffered any actual loss or not. It is the act of trespass that entitles the claimant to damages.

The case of Anglo International Upholland Ltd v Wainwright and others [2023]

The recent case law regarding drone flying and trespass comes from this case. The claimant’s property included an abandoned building which was unsafe and in a state of disrepair.

The site attracted trespassers who were camping out in and publishing photographs of the building on social media. In turn, this attracted more trespassers. Drones were also being flown over the building to take photographs for social media showing entrance routes.

This led to increased numbers of people visiting the site and encouraging trespass on the claimant’s private property. The claimant sought an injunction on the basis of trespass to prevent drone flying over their property.

The law

Under Section 76 of the Civil Aviation Act 1982, a drone is classed as an aircraft. Therefore, if the drone flies at a reasonable height above the ground, giving consideration to wind and the weather, the simple act of flying over the site would not amount to trespass.

However, the basis for this case’s claim was not the act of drone flying but what was taking place. The drone pilots were capturing videos and photographs during these flights for no reason other than to facilitate further trespass.

This injunction also relates to any unidentified persons who may not yet have committed the trespass prohibited by the injunction. Therefore, the landowner needs to ensure an order for service against persons unknown by way of alternative means is obtained from the court.

Once obtained, copies of the application and court order can be placed in prominent positions around the site. In addition, it can also be placed online via social media and in local online publications. This ensures that the application and court order are visible to anyone in or around the area where the trespass is taking place.

Drone flying over private property

Drone flying over private or commercial property and farmland can lead, in the short term, to direct injury of livestock. In the longer term, it can contribute to the facilitating of trespass by others across the land due to interest in the area from viewing footage taken by drones. This can lead to injury to people if the land is unsafe. Depending on the facts of each case, there may be an action for trespass available to take through the court to prevent further trespass and recover damages.

Any potential trespass needs to be dealt with in a prompt manner and our Commercial Disputes team are available to discuss this with you. Get in touch with Trudy Rosevink by emailing trudy.rosevink@coodes.co.uk or calling 01579 324 016. Alternatively, you can fill out our online contact form.