Can a Local Council Ban Drones | Public Law | Drone Law | BlackBeltBarrister
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 Im addressing today, but first of all, if you are new to me Im 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 Im 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 lets 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 Im 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 its 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 authoritys 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 isnt 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 its 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 its 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 dont 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 Im 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, its 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 CAAs. 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, elses 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, elses 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, elses 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 didnt 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, elses property, but lets 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 Im 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 dont 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 authoritys 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.
Theyve 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.