Drones and the Railway
**UPDATED January 2022 – CAA speaks on ‘legitimate interests’**
It’s a common question from both clients and operators: how close can I operate my drone to the UK railway? And it’s also a question which has vexed many operators over the (short) history of commercial drone operation.
As with many drone issues, legal precedent is scarce. There was a prosecution in 2017 of a case where a drone was flown in close proximity to a heritage steam train. The case was litigated under the Air Navigation Order (2016) which, at the time, stated that a drone must not be flown:
…..within 50 metres of any vessel, vehicle or structure which is not under the control of the person in charge of the aircraft;
However, this legislation has subsequently been amended (3 times) and no longer includes the article in question. That point has not been lost on drone operators, one of whom filed a Freedom of Information request in response to some questionable statements on Network Rail’s website. In particular, he sought legal backing for Network Rail’s assertion that:
It can be illegal to fly a drone on or near the railway….. It is a criminal offence to fly a drone on, over or within 50 metres of the railway or within 150 metres in built up areas.
In short, the answer was that Network Rail could not back up its assertions with any legislation. Replying on 21 January 2021, Network Rail’s response was that
We have conducted searches but unfortunately it is not known whether the previous two statements (that were published on our website) were codified into law but I can confirm that there are no legal condiitons [sic] that back these statements at this time.
So, where does this leave the current legal position?
Given the demise of Article 95 of the Air Navigation Order, is there any thing in aviation law or CAA guidance which dictates the position? The equivalent restriction (for ‘Specific Category’ operators) is now contained in the so-called Pre-Defined Risk Assessment 01 which forms the basis of an operator’s authorisation to fly and states that there shall be:
No flight within 50 metres of any uninvolved person, except that during take-off and landing this distance may be reduced to 30 metres.
The CAA’s guidance document CAP722 also offers a clarification:
The prescribed separation distances from uninvolved persons still apply to persons that are occupants of any vehicle, vessel or structure. Therefore, the relevant limitations for separating from persons must still be applied, unless the remote pilot can be certain that they are either:
– or, in the case of structures, the remote pilot can be certain that the occupants will still be protected. Additionally, the overall security and privacy situation must also be considered. There may be buildings in the area where it would be inadvisable, from a security or privacy standpoint, to be flying close to without first obtaining permission to do so.
Additionally, Article 241 of the Air Navigation Order reminds operators that:
a person must not recklessly or negligently cause or permit an aircraft (manned or unmanned) to endanger any person or property.
From this legislation, it would appear difficult for a UAS Operator to defend a case of flying <50m from a train.
However, the question of flying close to a vacant railway, or overflying at a height greater than 50m is not answered by reference to aviation law.
In January 2022 the UK CAA published some interesting, and somewhat loaded, guidance on enforcement of flying restrictions by other regulators. Whilst outwardly highlighting that its own authority rests in matters of airspace rather than ground activity, there is a clear subtext that it sees other authorities as attempting to outside their own jurisdiction. In other words, bodies with regulatory authorities on the ground should not attempt to annexe the skies:
The CAA cannot provide advice on what is, or is not, a legitimate interest or whether restrictions or fees are being lawfully imposed by other authorities. However, any authority or regulatory body should be able to identify the specific laws, regulations or bye-laws that empower it to regulate the use of UAS, or more usually, the land from which they are operated, much as the CAA has set out the regulations that it applies, above. We recommend that if you are unsure of whether a restriction imposed by a body legitimately applies to your flight, you request that information from the relevant authority or regulatory body.
It’s a fascinating intervention, and supports those who have challenged public authorities and corporations to justify legally their imposed limitations on drone users.
A common pitfall for drone operators is to neglect that all laws of the land apply to them, and not just aviation regulations. There are numerous railway regulations in UK statute law although none, it seems, specifically refers to drones.
Railway trespass was outlawed in the Regulation of Railways Act 1868, but is clearly aimed a walking on the railway without permission, rather than overflight.
However, more applicable regulations do appear in the Offences against the Person Act 1861. Articles 32-34 concern actions which might endanger the railway. The most salient, because it allows for infringement by omission, is Article 34:
Doing or omitting anything to endanger passengers by railway.
Whosoever, by any unlawful act, or by any wilful omission or neglect, shall endanger or cause to be endangered the safety of any person conveyed or being in or upon a railway, or shall aid or assist therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years.
This, it would seem, is the most likely route of prosecution were an incident to occur.
The Role of Network Rail
So where does this leave Network Rail, and in particular its system of permissions for flying drones near the railway? And, where no meaningful endangerment has occurred (i.e. a specific incident or accident), could a prosecution still take place?
The role and responsibilities of Network Rail are set out out in the Railways Act 1993. On matters of safety, Network Rail’s power and responsibility are defined, broadly, as upholding the Health and Safety at Work Act (i.e. making sure that railway work is conducted in a way that is safe for both workers and users) and also upholding the various railway regulations including those mentioned above. Failure to follow an instruction by Network Rail is not, it would seem, an offence in itself. That said, it would no doubt be detrimental to an operator’s legal defence if she/he had knowingly disregarded guidance or instruction.
We should be clear: drones should never be flown in a way which could reasonably be considered to threaten safety. Regardless of the legal niceties, there is a moral imperative there. Nor should operators forget that, regardless of the criminal position, any damage or disruption to the railway is like to lead to hefty civil claims.
However, in criminal law, the position appears to be that flights affording 50m separation to the railway, and which are not reckless or negligent, are within current aviation and railway law. And, as such, operators in the Specific Category might reasonably argue that a well-maintained aircraft, especially of low kinetic energy, might fly at less than 50m lateral separation to the railway provided that a direct 50m separation is maintained.
But, as ever in such matters, a judge or jury will ultimately set the precedent!