Law - am I breaking bylaws?

[Martin Harris - Moderator]

Trouble is, as I understand it, there is no strict definition of what is a reasonable height specific to trespass. Ancient laws of trespass from before the advent of ballooning actually stated that land rights extended from Hell below to Heaven above - when aerial navigation came along, the laws were modified to allow flights to pass over, but if someone were to fly unusually low so as to cause a nuisance or restriction to the use of the land, it is still actionable in civil law.

The ANO is a separate piece of criminal law legislation which adds an extra layer of restrictions and responsibilities.

[Dave Hopkin]

Those medieval hell to heaven rights vanished well before the wright brothers

The mineral rights are a separate entity from surface land ownership

The ownership of the airspace is the crown and delegated to the CAA

Anyone taking legal action against overflight would have to do so under a) Noise Nuisance b) Low Flight Nuisance c) Damage to property or d) Reckless Endangerment

Noise would be tested against the 84dB guidelines and the times/duration of the claimed Nuisance

Low Flight would be tested against the 50m minimum height ruling by the ANO

Damage and Reckless Endangerment would be on a indivdual case by case basis

[John F]

Posted by Martin Harris on 04/10/2015 01:57:58:

The ANO is a separate piece of criminal law legislation which adds an extra layer of restrictions and responsibilities.

Criminal legislation covers conduct and relates to crime and includes punishment guidelines. As with everything criminal charges might be brought if you will fully try to harm someone, for example, with an aircraft but the ANO is not a criminal based document.

The Air Navigation Order is, instead, the legal foundation for civil aviation which then gives the CAA its powers.

[Rick Tee]

Just to clarify the council position: here in Plymouth i contacted the local council with regard to flying models in parks or open land some years ago. I had no problem getting a reply, what they told me was: no model aircraft of any kind may be flown within the city limits. Their response to a request for a suitable flying site was: we have nothing suitable.

Councils are NOT under any obligation to provide a site for flying model aircraft or any other sport.

[Old Geezer]

Posted by John A Cole on 19/10/2009 17:49:14:

so adding to the debate (some friends had a number of views on this!),..... what if you were flying from a public footpath/right of way? across a piece of land?

As I understand it, you only have the right to pass and re-pass on a footpath and or right of way. You do not have the right to picnic, pick flowers, or launch and catch our "toys", or do anything else for that matter, other than to follow the defined F.P./RoW across said land to get to the other side.

[GONZO]

Same for roads, just for vehicles to pass and re-pass. Care to go and tell the local kids, thier parents and the police that the're breaking the law playing footbal in the road and you want them stopped and prosecuted.

'Whats sauce for the goose is sauce for the gander'

[Peter Christy]

Rick, not all councils are aware of the legal position, and think they can just ban activities on their say-so. That ain't necessarily so! Did you ask them which bye-law banned the flying of models within the city limits? I'll bet there wasn't one! Bearing in mind the restrictions of the ANO, any large, public, open space within the city limits might be considered a possible suitable site. I'm sure models have been flown on the Hoe on special occasions, for instance, which would not have been possible were there a city wide bye-law! (I'm not suggesting that would be a suitable site normally, however!) And I know that model flying used to take place on Roborough years ago, with ATC permission. So I suspect you were fobbed off! And while councils may not have a general obligation to provide a facility for model flying - or indeed any other activity - they DO if they impose a total ban on an existing facility. At least that was the position some years ago, and the reason why councils tend to go for restrictions rather than bans.

Don't assume the council knows the law any better than we do!

--

Pete

[Martin Harris - Moderator]

Posted by John F on 04/10/2015 08:20:58:

Posted by Martin Harris on 04/10/2015 01:57:58:

The ANO is a separate piece of criminal law legislation which adds an extra layer of restrictions and responsibilities.

Criminal legislation covers conduct and relates to crime and includes punishment guidelines. As with everything criminal charges might be brought if you will fully try to harm someone, for example, with an aircraft but the ANO is not a criminal based document.

The Air Navigation Order is, instead, the legal foundation for civil aviation which then gives the CAA its powers.

You're quite right John, I didn't put that very well - I should have said that it is a criminal offence not to comply with the ANO. The main point I was trying to make is that trespass is a civil offence and the person entitled to the use of the land would need to bring any action themselves. The fact is that although there is no control of aerial navigation over property, unreasonably low flight is a basis for action.

Edited By Martin Harris on 04/10/2015 10:13:49

[eflightray]

Reference the farm shooting.

Doesn't a farmer have the right to shoot a dog if it is attacking or endangering his livestock ?.

Just don't fly over farm fields that contain livestock in a way that could be construed as 'endangering' the livestock. I would assume 'endangering' could include panicking the animals such as sheep, similar to 'sheeple', but with four legs  .

You can probably be hung, drawn, and quartered, if you upset grouse, pheasant, partridge, etc.

 

 

Edited By eflightray on 04/10/2015 11:17:54

[Dave Hopkin]

Under the "Protection of Livestock act 1953" a farmer may shoot a dog that is "worrying" livestock (that includes everything from chasing them, through alarming them down to simply "being at large" - However shooting a dog can also lead to Criminal Damages charges against the farmer - so in the event of shoots being fired it is the responsibility of the farmer to demonstrate just cause (I would assume that "RC Aircraft" could be substituted for the word "Dog" though it would be a test case in law)

The other facet of this is the potential violation of the firearms certificate - on each certificate the intended purpose of each firearm is declared - unless this covers this use (which is unlikely) then the Farmer could also attract prosecution under the Firearms act (far more serious offence, almost always attracting a custodial sentence)

So if the model was overflying crops then the Farmer would total wrong and would face prosecution

If the model was over animals then provided the Farmer had tried alternate methods to stop the problem (ie telling you to buzz off) then he may be found not guilty perhaps.....

 

See full detials http://www.fwi.co.uk/farm-life/your-legal-rights-on-shooting-dogs-on-your-land.htm

Edited By Dave Hopkin on 04/10/2015 11:58:01

[Erfolg]

The action of the quoted farmer illustrates one of the principal differences between England and much of Europe. It has been very common in England for exclusive rights of access, these rights have been guarded jealously.

The recent legislation although modest compared to the rights to access in much of Northern Europe (Norway/Sweden/Austria/France/Scotland etc.) passed by the last Labour Government should be applauded. although apparently not as generous as else where so it would seem.

England being the most densely populated country in Europe and supposably most of the world, can only see further attempts to limit access, as we all compete for our little bit of England, to fly our models, fish, shooting rights and so forth.

On the one hand I would like more freedom to fly my models, on the other hand I want to restrict others from preventing me doing so safely, by invading my flying field.

I do remember whilst at college(in the distant 20th century) that one of my fellow students being fined for running into a cow roaming the main "A" road, having escaped from a field. A change in law since then would see the farmer in trouble and liable for the damage to cars etc. I guess the noted farmer still believes that he can do what ever he likes with impunity on his land. Not helped it would seem by the local farm friendly police it would seem, if this occurred recently.

[Dave Hopkin]

I am not sure about "farmer friendly police" if you made a report stating that "gunshots had been fired" you will trigger a reaction that will be anything but friendly - the mention of firearms causes plod to have a major sense of humour failure!

[Erfolg]

At both of the clubs and fields I fly from, the noise of shot guns is very common.

I will say that since the NT took over the land, I am not as aware of people crawling along hedge rows with shot guns. These days it is more usual to come across air cannons than shooters. It is also true that the only Hunt I have seen in recent years was a NT authorised Drag Hunt. There is though a clay shoot within hearing range of one of our locations.

At club number 2, I have heard what I take to be a Clay Shoot, a few times.

Naturally the Police are not interested in these things, to the best of my knowledge.

Personally, I would be alarmed at a farmer shooting at model aircraft, i would also expect the police to take more than a passing interest.

Yet we are possibly more aware that the police have in the past and continue to look the other way when certain issues arise, for a variety of reasons from political pressures, media coverage, or social reasons (pressure groups). In reality if all laws presently on the statute book were pursued, the courts would be full and possibly a mass response from the majority population.

[Peter Christy]

Posted by Erfolg on 04/10/2015 17:36:06:In reality if all laws presently on the statute book were pursued, the courts would be full and possibly a mass response from the majority population.

How true! And how many of the laws actually passed by our politicians are actually enforceable? Seems to me a lot of the stuff on our statute books was enacted more from a need to be seen to be doing something, rather than in any realistic hope that it might be enforced........

--

Pete

[Biggles' Elder Brother - Moderator]

Posted by Martin Harris on 04/10/2015 01:57:58:

Trouble is, as I understand it, there is no strict definition of what is a reasonable height specific to trespass.

It was to address exactly that question that I specifically cited an altitude of 50m Martin. This is inspired by the requirement to remain 50m from any person or structure not under your control regulation. In my view I believe that is full defenable. Strictly speaking, as I said, it only applies to our aircraft when fitted with a data gathering device - eg a camera. But I believe it could reasonably be used to define that height at which an overflying model is not intrusive or causing a nuisance. The law isn't designed for that purpose, but the "reasonable person" aspect comes into play in the absence of a firm figure. I would say that if you defended yourself by saying you were using the SUAS regulations as a guideline of what was reasonable height to overfly someones private property you'd have a pretty good case.

BEB

[Martin Harris - Moderator]

It's still undefined though. The 50m requirement is measurable but applies to the requirements for exemption from the ANO but trespass is a civil matter and has requirements over and above safety which I believe is the intention of the ANO.

I agree that it would be a basis for attempting to defend a case brought against a model pilot but legal experts quote such examples as overhanging cranes being a basis for damages to be awarded for trespass.

For example:

airspace - invasion of the airspace above the land may also constitute a trespass, but is limited to the height at which the invasion would interfere with the full use of the land. For example, overhanging eaves will be a trespass. A trespass will also be committed if a structure that is connected to an owner‘s adjoining land overhangs their neighbour’s land, even if it is at a height that would not necessarily affect the neighbour‘s use of the land. Conversely, overhanging tree branches will only be classed as a nuisance (where damage has to be proved).

Or:

Laiqat v Majid
[2005] EWHC 1305

The trial judge held that an overhanging extractor fan was not causing a trespass because it did not cause a substantial interference with the claimants land. On appeal this was held to be wrong.

• ".. if a defendant interferes with a claimants airspace, this amounts to trespass except that this conduct would not constitute trespass if the interference were at such great height - such as by high flying aircraft - that it does not interfere with the claimants airspace. As Scott J explained if somebody erects on his own land a structure, part of which invades the air space above the land of another, the invasion is trespass." (para 34).

Edited By Martin Harris on 05/10/2015 00:11:40

[john featherstone 1]

FLIPPIN ECK IVE READ ALL OF THIS AND IT SEEMS WE ALL NEED TO BE PIGGIN L A LAWERS BEFORE WE CAN FLY ANYWERE TODAY ALL THE GUY WANTED TO KNOW WAS WERE HE COULD FLY HIS MODEL PLANE IN PEACE LEGALLY park flyer???????

[kc]

Regarding the helicopter shot down. Wouldn't we all want the BMFA to take up the heli owners claim for damages against the shooter? It would be in all our interests to have a clear ruling in our favour as many ( most?) clubs fly out over other peoples land at some time.