Can a local council ban drones? lots of people love flying drones myself included
they are much less expensive than they used to be they are much safer than they used to be
and they take much better photographs and video than they ever did before not only can drones
be much lighter and much smaller but they can be easier to fly and the technology and
the software makes them much safer so the question remains can the local council and
drones in their district that is the question I'm addressing today but first of all if you
are new to me I'm a barrister who helps you understand law so please hit the subscribe button
Annabel icon legal questions down below I do live streams on Sundays and I take your questions and
I move them over to blackbelt secret my sister channel linked in the description below to the
question as to whether or not a local council can ban drones is something of a public law question
which is a little bit of a difficult subject to explain but I'm going to give you the outline of
how these laws are made and whether or not they will be enforceable ultimately that will answer
the question as to whether or not a local council can ban drones because ultimately they would be
making rules which are effectively law if they want to enforce them which amount to bylaws so
that is the substance of this video so let's get going to section 236 of the local government act
1972 sets out the procedure for creating bylaws and broadly speaking vinyls can be divided into
various categories there can be local authority bylaws countryside bylaws transport bylaws
and military land bylaws and going to various different examples of bylaws in another video
but for the purposes of this video I'm going to focus on the creation and validity of such bylaws
because they will answer the question as to whether or not local council conundrums to local
authority wants to create a role that restrict or prohibit certain behaviour by certain people in
certain places at certain times they would have to do this by way of a bylaw if they wanted to make
it enforceable and back to the local government act 1972 there is a general power of the local
authority to create bylaws under section 235 which reads as follows the Council of the district and
the Council of the London Borough may make bylaws for the good rule and government of the whole or
any part of the district or borough as the case may be and for the prevention and suppression
of nuisances therein now many people will argue that drones are some kind of nuisance
but it's not quite as simple as that some obvious nuisances that local authorities can create bylaws
to prohibit are things such as cycling or skating on footpaths Riding on verges and even such things
as urinating in a public place it comes to areas such as pleasure grounds public walks and open
spaces may be other statutory provisions of the local authority to create vinyl for example the
public health act of 1875 and the open spaces act of 1906 and this would generally depend on
two things firstly the local authority's interest in the land and its involvement in the management
of the land select so the local authority decides to create such a bylaw to ban drones within that
area well any bylaw created by local authority as you might expect is subject to scrutiny
of the court and there are ultimately two different ways this can be done firstly would be a
direct challenge which might be way of a judicial review which is permitted under section 54 of the
civil procedure rules or what could be termed as a collateral challenge which might be where it is
raised as a defence as to challenge the validity of the bylaw if someone is being prosecuted under
that by law in court either way when considering bylaws and the challenge to their validity
Courts will have regard to the following firstly is it reasonable now is it reasonable to ban
drones in the local authority area somewhat argue yes it is and someone clearly argued no
it isn't banning of the drones in their entirety may not be considered to be reasonable for example
banning of certain drones over a certain weight in a certain location might be considered to be
more reasonable if it's much more narrow in focus and therefore not just a blanket ban if the buyer
was found to be unreasonable then the courts are also going to find it invalid which means the
bylaw should no longer be enforceable or it would be successful in the defence in the prosecution
someone breaching semifinal Abiola will also be found to be unreasonable if it is ultra vires
so unreasonable or irrational that no reasonable person acting reasonably could possibly have made
more generally in the case of Cruz Johnson in 1898 a bylaw is considered to be unreasonable if it's
found to be partial or unequal in its operation among classes secondly it may be manifestly unjust
thirdly it may have been manifested in bad faith and also that it might involve such oppressive or
gratuitous interference with the rights of those subject to them as could find no justification in
the mind of reasonable men so ultimately in making such a bylaw to ban drones if it were found to be
unreasonable the courts are also going to find it invalid the next requirement is one of certainty
now I don't really think that local authorities are going to struggle with this if they certainly
ban all kind of unmanned aircraft whatever however there are some distinctions and usually confusion
among the different types of drones and weight categories and so on again I'm going to come back
to that a little bit later the next requirement for bylaw to be valid is one of some considerable
significance that is that it has to be consistent with existing legislation broadly speaking a bylaw
is going to be considered invalid if it is not consistent with existing legislation
or it deals with the matter that has already been legislated section 235 sub three of the
local government act 1972 provides by law shall not be made under this section for any purpose
as respects any area provision for that purpose as respects that area is made by or is or may
be made under any other enactment of this of course should be one of the local authorities
first checks before deciding to create a bylaw it's not as simple as putting a sign upon a wall
to say this thing is banned because the bylaw needs to be consistent with existing legislation
in other words if the local authority seeks to deal with a certain type of nuisance it should
check the existing legislation to see whether that has been dealt with already and in doing so the
local authority must ensure that its bylaws are not going to duplicate or contradict any of that
existing legislation so that brings us neatly to what legislation actually deals with drones in the
first place so looking at this from a regular tree standpoint the civil aviation authority
is the U.K.'s sole regulator for the UK airspace and it is the only organisation that can authorise
changes to the structure of the UK airspace which work well for normal aviation and normal aircraft
but when it comes down to lower level airspace that being directly above towns and cities and
so on the CAA has obviously sought to implement regulations to control the safe use of drones
and indeed safety is the CAA's first priority CAA has had a dedicated drone regulation team
for many years and the overarching legislation for Essbase is the air navigation order of 2016 with
the document 722 has regard to the operation of unmanned aircraft but I discussed this in
greater detail in one of my other videos linked below however I should flag up the breach of
the air navigation order is a criminal offence he should take it seriously and read it in detail if
you are taking drones out there have also been lots of questions about whether flying a drone
over someone else's land amounts to press pass and whether that can be restricted but this has
already been dealt with in case law which suggest that the position would be the same these are
the drones to relevant cases are becoming a rent of 1815 in which the court held that it would not
be trespassed to fly a balloon over someone else's property and the second case which you probably
heard me mention before which is bursting on sky views of 1978 in which an aircraft was flying
over someone else's property taking a photograph of it and then offering it for sale to suffice
to say the court held that it was neither press pass nor nuisance because first of all it didn't
interfere with the property owners rights and it was only a single photograph taken so could
not amount to lose this latter case that is most likely to come into play when flying a drone over
someone else's property but let's move on given that the CAA has the authority to regulate UK
airspace and has already done so in relevant legislation I was interested to find out whether
anyone had looked into local authority policies to see whether they were consistent with existing
legislation again for reasons I'm going to come back to afterwards so in that respect my research
turned up fellow barristers article Richard Ryan which I will link in the description feel free to
telling that I give them a shout out together with a colleague he said that their research showed
over 350 local authorities either do not have a policy in place with regard to drones or if they
do it is not consistent with CAA regulations and to quote Mr Ryan he says we did not find
a single policy it was accurate up-to-date or enforceable so ultimately as Mr Ryan says and
I agree it is only a matter of time before one of these cases comes to court to challenge the
authority the local authority to create a bylaw that effectively contradicts or conflicts with
CAA regulations in the banning of drones in that area when the CAA has already created regulations
by which if you comply you should really be able to fly that drone anywhere so long as you comply
with the regulations and you don't fly in any restricted areas quite honestly such as airport
so what is the significance of all of this will the two things you remember that I said would come
back to word judicial review and ultra vires auto virus meaning beyond power all beyond authority
so if a public body makes a decision that they did not have the authority to make it is beyond
their power which will render it invalid and unenforceable how this might be achieved perhaps
I suggest might be by way of judicial review as I said such decisions which are public law decisions
by public bodies are subject to scrutiny of the courts and judicial review is one such method
if a person probably a drone pilot or collection of drone pilots were agreed by local authority's
decision to ban drones in that area they may challenge the local authority decision by applying
to the court for a judicial review under part 54 the civil procedure rules if on the application
the court were to agree that the local authority should not have made that by law perhaps because
it contradicts the CAA regulations and remember the local authority should not really be making
bylaws where there is already legislation in place or maybe in place to cover such activity the court
may find the bylaw ultra virus all beyond power to have been made in the first place if the
application was successful to the remedies that are particularly noteworthy open to the court are
firstly an order quashing the ultra virus decision meaning that the decision is no longer valid and
no longer enforceable and secondly perhaps in the instance where a local authority has said that it
is going to create a bylaw banning and restricting the use of drones court may make an order by way
of injunction preventing the ultra vires decision from taking place and of course there is also
the ongoing risk for a local authority of cases brought in the High Court equally for injunction
and damages and a declaration it should be noted that these applications are expensive
for all parties concerned and anyone doing so may be wise to consider after the event insurance
which they might require a positive opinion from counsel before they can get such insurance which
would seek to protect their position in respect of costs of course for all of that you would need to
seek formal legal advice so in summary bylaws have got to be reasonable they've got to be certain
in their terms then got to be consistent with existing legislation and has got to be true virus
which is where the local authority did have the power to make such a law in the first place
so altogether as with many new areas of law there is very likely going to be a test case at some
time or another where the courts do consider all of these things and makes a decision as to whether
or not the local authority can indeed create an enforceable by law in respect of flying drones so
I hope you found that a useful discussion please give it a big thumbs up if you would like this of
content sharing with someone you think will find interesting and remember stay humble subscribe