In a previous MLT Aikins Insight, we discussed the new Transport Canada rules, regulations, and fines surrounding recreational drone use in Canada. While these rules introduced new "basic" and "advanced" pilot categories (with related certification and registration requirements), they also loosened some of the operational requirements regarding where a drone can and can not be flown. Airports, Heliports, National Parks and Provincial Parks are no-fly zones, as are other designated areas, but as long as pilots are the proper distance away from those spots, and follow the other rules respecting their pilot licence, they can fly more or less anywhere.
But what about over/across private property? With their cameras and ability to fly anywhere in the sky, drones have the capability to peer into areas that have previously been inaccessible to the public. Can private property owners – be it a residential house, a 100,000 acre nature conservatory, or anything in-between – ban or otherwise restrict drones from flying/hovering over their property?
This is a complicated question that requires a review of the current laws surrounding drone use, as well as applying existing laws to the new situation that drones have created.
Current Drone Regime
Drone operation is under the jurisdiction of Transport Canada, and is regulated by the Canadian Aviation Regulations (the "CARs"), which are made pursuant to the federal Aeronautics Act.
The primary purpose of the CARs is aviation safety, i.e. ensuring a drone does not pose a risk to other (occupied) aircraft or to the public when they operate. The CARs are less concerned with issues related to privacy, trespass, or nuisance. The only real restriction in the CARs that could be said to involve a privacy element is the requirement that "basic" operators not fly within 100 feet (30 metres) of another person. While this effectively grants individuals a 100 foot radius where they (and therefore their private property, if they are on it) are free from drones operated by "basic" operators, the CAR does not, in of itself, confer any private property restrictions on drone overflight.
Perhaps in an attempt to bridge this gap, Transport Canada advises drone pilots that in addition to complying with the CARs, drones must be flown in a manner compliant with:
- relevant sections of the Canadian Criminal Code (the "Code"), including Offences against Air or Maritime Safety, Breaking and Entering, and Mischief;
- the applicable provincial Trespass Act; and
- laws related to voyeurism and privacy.
Criminal Code and Voyeurism/Privacy Issues
In addition to operating drones in compliance with the CARs, drone operators and bystanders alike must be mindful of relevant sections in the Code which govern drone flight. Section 77 of the Code states that causing damage to an aircraft in service that renders the aircraft incapable of flight or that is likely to endanger the safety of the aircraft in flight is an offence. As drones are considered aircraft, this section restricts bystanders from attempting to render the drone incapable of flight.
The Code also makes voyeurism an offence. Pursuant to section 162, it is an offence to surreptitiously observe, whether by the naked eye, mechanical, recording or electronic means, a person who has a reasonable expectation of privacy and is nude or engaged in sexual activity. The ever advancing technology of drones gives rise to the fear that drones may be employed to observe and/or record unsuspecting individuals in private, such as in their bedroom. Given the access over private property that drones are able to achieve, the Code's section 162 arguably makes a hovering, observing drone outside a bedroom window an illegal act if it is observing intimate actions inside.
"Air Rights" and Trespass/Nuisance Above Private Property
The questions raised by drones operating over private property require a fresh examination of old legal principles pertaining to property rights.
Prior to the recent surge of drone use, the only things that could intrude into the air space above private property were planes and helicopters (both of which operate at higher elevations than a drone) or structures such as overhanging buildings or swinging cranes. The issue of low elevation intrusion into the air space above private property – such as that done by drones – has therefore yet to be considered in any substantial manner by Canadian courts.
To further complicate matters, in law, a private property owner does not have any legally quantified ownership right to the airspace above their property. Rather, the law is that a private property owner's rights to the airspace above their property is limited to "such height as it is necessary for the ordinary use and enjoyment of his land and the structures upon it," per the precedent set in the English case called Bernstein of Leigh (Baron) v. Skyviews & General Ltd. (and affirmed in Canada).
But what does that mean? How much airspace above a property is required for the property owner's "ordinary use and enjoyment" of their property? Some guidance on this issue can be sought from cases involving the civil torts of trespass and nuisance.
The civil tort of trespass prohibits unwanted entry by a person or the unwanted placement of an object upon an owner or occupier's land. Pursuant to British Columbia's Trespass Act, an offence occurs when a person "enters premises that are enclosed land; enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited; engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited." Hence, fenced private property with "No Trespassing" signs.
The prescribed definition of "premises" in the Trespass Act, however, relates solely to land and does not include airspace. Nevertheless, trespass has also been found to occur in instances where an airspace intrusion interferes with an owner's ordinary use and enjoyment of their land. In those cases, trespass was established where there was a degree of permeance to an airspace intrusion (over private property) that was either low enough or conducted in such a manner that precluded the actual or potential enjoyment of the land. On this standard, intrusions of a transient nature that do not pose much, if any, interference to an owner's use/enjoyment of the land, such as a drone passing overhead or briefly hovering before departing, are less likely to be considered trespass given that the intrusion would likely not have enough permanence to interfere with the land's use/enjoyment.
Often discussed in conjunction with trespass, the civil tort of nuisance is an unreasonable interference with another's use and enjoyment of one's property from outside the property. Nuisance is assessed on a balance of reasonability and one's enjoyment of their property is assessed as being able to do as they please.
Does a temporary drone overflight truly diminish a property owner's enjoyment of their property? This would likely be a highly factually-specific question, and depends on factors including the size and loudness of the drone, how long it spent over the property, its elevation (both generally and in specific relation to other structures on the property such as a building's rooftop), what it was doing (stationary vs. continually moving around), the use to which the property owner was putting their property and how they were enjoying it. In other words, nuisance requires a subjective analysis that weighs the relative rights of two (or more) parties, as opposed to prescribed activities. A rural property owner whose natural landscape is a sanctuary for birds/wildlife, for example, may be more easily able to establish nuisance from a drone as compared to a city dweller whose property doesn't have a single tree or blade of grass.
The issues of trespass and nuisance as they pertain to airspace rights over private property were highlighted in the case of Janda Group Holdings Inc. vs Concost Management Inc., 2016 BCSC 1503. In that case, a landowner sued over a construction crane from a neighbouring property that would occasionally swing over his own. The BC Supreme Court concluded that, while the crane did intrude into the landowner's airspace from time to time, it did not necessarily constitute trespass (so an injunction prohibiting it from doing so was not an appropriate remedy). The Court did find, however, that the overhanging crane was a nuisance, and granted damages to the landowner. It further held that the amount of nuisance damages should be more than nominal, and should reflect the use of the airspace. In other words, the amount awarded will depend on the facts of each case, including the conduct of the parties.
While the buzzing of a drone over your private property may be extremely annoying, it seems that there is little private property owners can proactively do to prohibit overflights. As is often the case with new technology, the laws have not necessarily kept pace with the current reality. It therefore seems likely that we will see an increasing number of cases before the Courts where the exact limits, if any, of drone use over private property will be decided.