Drone safety: A drone's eye view of the latest UK and EU regulations

According to a recent report by PwC, there will be 76,000 drones operating in UK skies and their use will add an extra £42 billion to the UK's gross domestic product (GDP) as of 2030. As drone use increases, so do safety concerns.

Unsurprisingly, regulation is increasing. From 30 November 2019, under UK legislation, 'operators' of drones between 250g and 20kg must register and the 'pilots' of such drones must pass an online test. The EU has also enacted two 2019 Regulations, one on the design of drones and the other on their operation.

The UK and EU rules have many similarities. For example, the maximum height at which drones can be flown is 120m and drones weighing less than 250g are the least regulated. However, when it comes to the detail, the regimes also have many differences.

For instance, there is no minimum age limit in the UK to fly a drone weighing less than 20kg. Conversely, the minimum flying age under EU law will generally be 16 years for drones weighing between 250g and 25kg. Brexit is, therefore, likely to make a real difference.

Use and the need for regulation

Drone use is growing rapidly in the UK. Recreational use has grown as consumer-grade devices have become increasingly sophisticated and cheaper. It has been estimated that British consumers purchased 1.5 million drones during the Christmas period of 2017 compared to 530,000 drones in the whole of 2014.

The uplift in the use of drones also has potential to bring significant economic benefits arising from cost reductions and efficiency improvements. We can expect to see drones used in such diverse areas as transportation and delivery, environmental monitoring, construction, inspections, manufacturing and precision agriculture.

PwC's report suggests that 628,000 people could be employed in the drone economy by 2030, so it's worth thinking now about how vulnerable your business is to drone-driven disruption and what opportunities for the use of drones exist.

In addition, law enforcement authorities and rescue services use drones to monitor and search for people. Drones can also be deployed, for example, to help put out fires in high rise buildings or other inaccessible places. The military use drones for surveillance and missile strikes and (alongside law enforcement authorities) have also developed systems to detect and destroy dangerous drones.

Criminals and terrorists will try to use technologies to evade detection, while law enforcement will try to stay ahead of the game. But whatever the risks of an accident or malicious use, the consequences can be catastrophic, which is why legislatures have been busy trying to regulate drone use.

UK regulation

UK law on drone safety was substantially updated in 2018. It is contained in the Air Navigation Order 2016, as amended by the Air Navigation (Amendment) Order 2018.

Endangering life

If the person(s) responsible for flying the drone(s) at Gatwick airport are caught, they might be prosecuted for the offence of recklessly or negligently:

• acting in a manner likely to endanger an aircraft, or any person in an aircraft (maximum penalty: 5 years' imprisonment and/or a fine)
• causing or permitting an aircraft [including a drone] to endanger any person or property (maximum penalty: two years' imprisonment and/or a fine).

Rules for drones up to 20kg

There are more specific rules for small drones (defined as small unmanned aircraft) which weigh no more than 20kg, including that a person must not cause or permit any article or animal to be dropped from a drone so as to endanger persons or property. The UK's Drone Safe website sets out some of the basics.

UK law distinguishes between the operator of the drone and its pilot. The operator is the person who has the "management" of (ie is responsible for) the drone. This is usually the person who owns it. The pilot is the person who operates the flight controls. Often, the operator and pilot are the same person.

Some prohibited acts are subject to exceptions if the operator and pilot have permission from the Civil Aviation Authority (CAA) and/or relevant air traffic control (see here). Obtaining permission is often vital for the commercial application of drones.

The pilot:

• may only fly the drone if reasonably satisfied that the flight can be safely made
• must maintain direct, unaided visual contact with the drone (this means that controlling the flight by looking at the images from the drone's camera – so using an AR/VR headset – is not allowed).

Some restrictions apply both to the operator (who must not permit the drone to be flown in a certain way) and the pilot (who must not fly it in that way). For example, drones must not be flown:

• for commercial purposes
• above 400 feet (120m)
• inside the restricted zone of an aerodrome (airports, military airfields and smaller aviation airfields) – what constitutes a restricted zone changed in March 2019 (see here and here for more information).

There are also strict rules for drones which can collect data. This includes drones with cameras and so will catch most drones. They must not be flown:

• within 50m (30m for take off and landing) of any person apart from the pilot or a person under their control
• above or within 150m of any congested area
• above or within 150m of any organised assembly of over 1,000 people (eg a sports stadium)
• within 50m of any vessel, vehicle or structure which is not under the control of the pilot.

This means that the operator and pilot of a 'surveillance' drone must keep it well away from other people, cars and buildings. It is likely that this rule will be breached by many people flying their drone in the park or on the beach during the day and result in numerous complaints to the police.

The government is proposing new police powers relating to the misuse of drones as set out in the draft Drones Bill. Interestingly, unlike the EU drone rules, the UK rules do not say anything about endangering animals.

Registration requirements for UK drone operators and pilots

From 30 November 2019, the operator of a drone which is between 250g and 20kg must not cause or permit the drone to be flown unless:

• they have obtained a certificate of registration from the CAA
• the operator's registration number is displayed on the drone
• they reasonably believe that the pilot has obtained an acknowledgement of competency from the CAA.

To obtain a certificate of registration, the operator must be aged 18 years or over and pay the annual registration charge (which the CAA has proposed will be £16.50).

Also from 30 November 2019, a pilot must not fly a drone between 250g and 20kg unless the CAA has issued the pilot with an acknowledgment of competency. The online test will likely cover safety, security, privacy, data protection and the environment. There will be no lower age limit or fee to take the test.

Pilots must not fly unless they have a reasonable belief that the operator has obtained a registration certificate and displayed the number on the drone.

EU regulations

While the UK has upgraded its drone laws, the EU has been at work too. On 1 March 2019, the EU published Regulation 2019/945 on the requirements for the design, manufacture and distribution of drones.

On 24 May 2019, it published Regulation 2019/947 on the rules for operating drones, which will generally apply from 1 July 2020, subject to transitional provisions.This states that drone operations should be as safe as those in manned aviation.

The Regulations will create a level playing field across the EU for drone manufacturers and operators.

Drones may not be made available on the EU market unless they satisfy numerous specific manufacturing conditions and do not endanger the health or safety of persons, animals or property. The EU Regulations place drones into three main risk categories:

• open – these present the lowest risk and do not require prior authorisation before operating the drone
• specific – these create a higher risk and require authorisation to operate the drone
• certified – these require the drone and its operator and pilot to be certified and generally treat drones like manned aircraft.

Drones are also classified as C0, C1, C2, C3 or C4 according to their weight (or the amount of energy released on impact). There are various manufacturing requirements including around labelling, maximum speeds, sound levels, lighting and safety features for each category.

As the drones in the classes get heavier and more capable, the safety requirements generally increase.

There are also obligations on importers and distributors.

Open category – operational requirements

Open category operations do not need authorisation. These operations must meet certain criteria, including that the drone:

• falls within classes C0-C4
• is kept a safe distance from people
• is not flown over assemblies of people (defined as gatherings where persons are unable to move away due to the density of people)
• is in visual line of sight (VLOS) operation, which requires continuous unaided visual contact, except when the drone is flying in follow-me mode
• does not fly higher than 120m above the ground
• does not carry dangerous goods (such as explosives and flammable, toxic, infectious, radioactive or corrosive substances) or drop any material.

Open category – responsibilities of the operator and pilot

The drone operator has a number of responsibilities, including ensuring that the pilot has the appropriate level of competency, that the drone's geo-awareness system has been updated and has a declaration of conformity.

The pilot must, for example, have the appropriate proof of competency for a drone weighing over 250g, check it is safe to fly and obtain up to date information about geographical non-fly zones. Pilots must maintain control and not fly the drone under the influence of drugs or alcohol or when unfit eg due to fatigue.

If the operation poses a risk to other aircraft, people, animals, the environment or property, the pilot must discontinue the flight.

Open category – drone flight categories

Different flying rules apply to different types of drone, which depend on, for example, its weight. There are three subcategories of open operations, A1, A2 and A3, which dictate where a drone can be flown relative to people. All of them require that the drone not be flown more than 120m above the surface of the earth.

Open Subcategory A1

The lightest category of drones, weighing less than 250g (eg class C0), may be flown over 'uninvolved persons'. An uninvolved person is generally anyone apart from the pilot. In contrast, the pilot of a class C1 drone (eg weighing 250g-900g) must have a reasonable expectation that it will not be flown over any uninvolved persons and if that happens unexpectedly they must take steps to minimise this.

To fly a C1 drone, the pilot must also have successfully completed an online training course provided by the relevant aviation authority. The course will cover topics such as air safety and regulation, human performance limitations, privacy, data protection, security and insurance.

Drones in classes C0 and C1 must be flown in VLOS unless they are in follow-me mode, in which case they must be flown within 50m of the pilot. The pilot must never fly them above assemblies of people.

Open Subcategory A2

Pilots of drones in class C2 (up to 4kg) have to take even more precautions. Such drones must not be flown over any uninvolved persons and, in general, must stay at a horizontal distance of 30m away from them.

Pilots must have practised away from people and hold a certificate having passed an even more rigorous test assessing knowledge of meteorology, flight performance and mitigating ground risk.

Open Subcategory A3

Class C2, C3 and C4 drones (up to 25kg) can be flown by a pilot who has passed an online test if they reasonably expect that no uninvolved persons will be endangered and the operation is at least 150m from any residential, commercial or recreational areas.

Specific category drone operations

If one of the criteria for open category operations is not met, the operation will fall into the specific category. To fly the drone, the operator will need to provide an operational risk assessment and obtain an authorisation from the competent authority in the Member State where the drone is registered.

The competent authority will only grant an authorisation if it concludes that, in light of the operator's risk assessment, competence of the personnel and technical features of the drone, the measures are adequate to keep the operation safe in view of the identified ground and air risks.

Pilots need to comply with competency requirements, including emergency procedures, flight planning, managing aeronautical communications, the flight path and automation, leadership, teamwork, problem-solving and decision making.

Certified category of drone operations

The biggest or most potentially dangerous types of drone must be 'certified'. These are ones which for example:

• have a characteristic dimension of over 3m and are designed to be operated over assemblies of people
• are designed for transporting people
• are designed for transporting dangerous goods which require the drone to be very robust to manage the risks for third parties in case of an accident.

Unsurprisingly, drones in the certified category are subject to laws governing aircraft design and operations and operators and pilots need to be certified.

Minimum age for pilots

The minimum age for pilots in the open and specific categories is generally 16 years. Individual Member States can reduce this by up to four years for the open category and two years for the specific category.

There is no minimum age for pilots of drones weighing less than 250g which are categorised as toys (ie ones designed or intended for use in play by children under 14 years of age).

Registration

The EU Regulations also provide for a registration system for certain drones and operators. Operators will need to register themselves and display their registration number on their drone if it is:

• 250g or more
• would transfer impact energy of more than 80 Joules to a person
• equipped with a sensor able to capture personal data (eg a camera) unless it is categorised as a toy
• operating within the specific category.

Drone operators have a duty to report any safety related occurrence to the competent authority.

Any authorisations granted to operators and certificates of pilot competency based on national law of EU Member States shall remain valid until 1 July 2021. After this date, Member States need to convert them so as to comply with the EU Regulations.

Safety in widest sense

Of course physical safety is not the only issue with drones. Data protection and wider privacy issues including harassment are central to the use of drones (see here for more). There are also concerns around liability and insurance in the event of an accident or malicious use.

The UK has been fairly quick to put in place sensible regulations to try to regulate the use of drones. This should help limit the risks of an accident. A separate market for apps and other technologies which help to mitigate these risks is also developing. The new EU rules are very detailed and should not only help increase safety, but lead to consistency for manufacturers and users alike.

However, the risk of a sophisticated malicious attack using drones is unlikely to be avoided merely by regulation and the wider privacy issues are difficult to resolve. This may impact uptake and limit the lawful use of drones.

If you have any questions on this article please contact us.