In the recently published decision in Anglo International Upholland Ltd v Wainwright [2023] 5 WLUK 613, the court found that drones with cameras were being used to encourage trespass in the form of urban exploring and granted an injunction, among other things, to prevent future trespass by drone.
This case raised two novel points. First, the courts had never gone as far to find trespass by drone flying. This is likely to be an activity subject to increasing litigation because of the proposed use of drones by private delivery companies, as well as individual hobbyists. Secondly, the court recognised two new methods of service of the injunction order, making it easier for landowners to effect service by alternative means.
Facts
St Joseph’s College, in Up Holland, Lancashire, a dilapidated former Roman Catholic seminary and boarding school, is a huge Grade II listed building enclosed by a high perimeter fence, patrolled by security and surrounded by Lancashire countryside. Naturally, this was a fascinating plot of land that urban explorers were keen to enjoy.
The trespassers were not only entering the site by getting over the fence, but were also using drones to capture images and posting videos on social media, encouraging others to trespass. AIUL brought a claim for an injunction.
This case was heard before the decision in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47; [2023] PLSCS 197, in which the Supreme Court provided guidance on injunctions against persons unknown and newcomers, finding that these sorts of injunctions were “a wholly new type of injunction with no very closely related ancestor”.
Decision
The judge granted the injunction, preventing persons unknown and one named defendant from entering the site and from flying drones over the site. He also found that any future flying of drones over the site would amount to trespass. The judge proceeded on the assumption that section 76 of the Civil Aviation Act 1982 could be applicable to drones and that the drone operator had complied with the requirements of the Air Navigation Order 2016 (SI 2016/765).
Section 76 states that there is no trespass “by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable.”
The judge then went on: “It follows (if the drone flies at a height above the ground which having regard to the wind, whether and all the circumstances of the case is reasonable), that by operation of the statute, the simple act of flying over the… site does not give rise to a claim in trespass. I do not regard section 76 as barring any interim relief in respect of drones on the facts of the present case. The basis of complaint is not the simple act of flying, but rather what is happening during the flight.
“Photographs and videos taken by cameras mounted on drones facilitate and encourage further trespass and potentially endanger life. Such footage and photographs can be used to work out new ways to enter the site. The only reason to fly a drone over the site is to facilitate trespass in the way I have described. Alternatively, if the specific use of the drone is not sufficient to warrant interim relief for the reasons set out above, then flying a drone so that footage can be taken means, in my judgment, that its height above ground could not be said to be (in the language of section 76) ‘reasonable’. It would follow that section 76 has no application and so the flight would be a trespass.
“In my judgment either because of the use to which the drone is put (if section 76 applies) or the trespass (if section 76 does not apply because the height of the drone is not reasonable), it is appropriate and proportionate to make an order preventing drone flights at the site.”
In summary
The judge’s logic was that the use of the drones involved not only the flying of them but also the capturing of images which were then used to promote further trespass. As such, because of how the drones were being used, section 76 did not apply.
Alternatively, the judge found that, if section 76 did apply, the height of the drones was not reasonable because they were able to capture photos and videos which were then being used to encourage further trespass. The fact that drones were able to capture videos and images which were being used to encourage trespass was sufficient to render the height of the drones “unreasonable” within the meaning of section 76. As such, the flying of drones in this case was trespass.
Service
Service was also dealt with in this case in a modern and practical way. First, the judge permitted service of the injunction order by placing notices around the perimeter of the site in the form of QR codes, which – once scanned by a smartphone – would lead to an online domain where the injunction order (and other documents) could be viewed. The claimant therefore did not have to print all the documents and place them around the site, which is the usual form of this type of alternative service.
Secondly, the claimant could rely on one defendant (the named defendant) serving the application on another defendant (persons unknown). At the claimant’s request, before the hearing of the interim application, the named defendant posted on his social media page notifying his (10,000) followers of the existence of the claimant’s application and including a link to an online space containing the application documents. The judge permitted this as one of the methods of alternative service of the application on persons unknown pursuant to CPR 6.15 and 6.27.
This judgment, along with the groundbreaking decision in Wolverhampton, is a boost to landowners who are considering injunctions against persons unknown. Those in the business of flying drones on the other hand should be aware of the need to take appropriate steps to gain protection of section 76 and of the risks of trespass.
Laura Tweedy is a barrister at Gatehouse Chambers; Helena Davies is a partner and head of retail and Oskar Musial is a solicitor in the property litigation team at Brabners
