Loaf Paper 1 Developing drones guidance

Cairngorms Nation­al Park Author­ity Ugh­dar­ras Pàirc Nàiseanta a’ Mhon­aidh Ruaidh

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Cairngorms Loc­al Out­door Access Forum

Paper 1 — Devel­op­ing Drones Guid­ance – dis­cus­sion ses­sion Pre­pared by: Adam Streeter-Smith, Recre­ation, Access and Infra­struc­ture Manager

Pur­pose LOAF Mem­bers are invited to con­sider the issues sur­round­ing drone use in the Park and through a facil­it­ated dis­cus­sion ses­sion advise on the scope and key issues that future guid­ance should address.

Back­ground There has been a steady increase in the pop­ular­ity and use of drones for work and for per­son­al use. They can be invalu­able tools in sur­vey­ing and provide awe inspir­ing foot­age for use in films and pro­mo­tion­al videos. Giv­en the sens­it­ive nature of many parts of the Cairngorms Nation­al Park guid­ance will be developed that seeks to set out the frame­work for what respons­ible drone fly­ing should look like in the Park.

The guid­ance will most likely be focused on the use of drones below 250g (or in the Co class as defined by the Civil Avi­ation Author­ity (CAA) and or non-com­mer­cial drone fly­ing. Drones below this size do not require a Fly­er ID, how­ever it is recom­men­ded by the CAA to help people under­stand how to fly safely and leg­ally. If they have cam­era in which case only an Oper­at­or ID is required.

The guid­ance would be for ​“leis­ure” drone use, such as fly­ing drones at pop­u­lar vis­it­or loc­a­tions for non-com­mer­cial pur­poses. It would not cov­er com­mer­cial use of drones for sur­vey work nor would it cov­er drone use with­in the con­fines of facil­it­ies such as ski areas or the use of drone for foot­age asso­ci­ated with recre­ation­al activ­it­ies for com­mer­cial or brand enhance­ment i.e. pro­fes­sion­al social media influencer.

Key issues for dis­cus­sion There is a lack of clar­ity as to wheth­er drones are covered by access rights and the Nation­al Park Author­ity may seek leg­al advice on the mat­ter, that said it is con­sidered that guid­ance is still required and that the fol­low­ing issues could be addressed in the guidance.

Data Pro­tec­tion and privacy

Cairngorms Nation­al Park Author­ity Ugh­dar­ras Pàirc Nàiseanta a’ Mhon­aidh Ruaidh

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Film­ing the pub­lic with a drone could be classed as video sur­veil­lance and for many indi­vidu­als be seen as par­tic­u­larly intrus­ive, espe­cially if for example, post­ing on social media sites such as You­Tube takes place without the know­ledge of the indi­vidu­al. There is no spe­cif­ic legis­la­tion on the data pro­tec­tion implic­a­tions of drone use. How­ever, the right to pri­vacy and the right to free­dom of expres­sion are both con­sidered fun­da­ment­al. The Inform­a­tion Com­mis­sion­er, the UK Data Pro­tec­tion reg­u­lat­or, has stated that drone use may infringe a citizen’s right to pri­vacy and private life if the drone is used intrusively.

Wild­life and Coun­tryside Act Some irre­spons­ible beha­viours towards wild­life such as fly­ing drones in a way that causes stress or dis­turb­ance to anim­als eg fly­ing close to a nest site could be an offence under the Wild­life and Coun­tryside Act (1981) and the Hab­it­ats Reg­u­la­tions 1994. The Wild­life and Coun­tryside Act (1981) states ​“You must not inten­tion­ally dis­turb spe­cially pro­tec­ted birds while nest­ing, or their young.”

Live­stock dis­turb­ance Unfor­tu­nately, there have been a num­ber of high pro­file instances where irre­spons­ible drone fly­ing has caused live­stock to pan­ic which could be det­ri­ment­al to preg­nant females. Civil pro­ceed­ings could be raised against an irre­spons­ible drone pilot if live­stock were injured as a res­ult of har­ry­ing by a drone.

Scot­tish Out­door Access Code Drones are not spe­cific­ally covered in access rights. Sec­tion 2.14 of the Scot­tish Out­door Access Code sug­gests that ​“the use of powered mod­el craft” is out-with access rights. When the code was developed drone tech­no­logy was in its infancy. At that time mod­el air­craft use was most fre­quently asso­ci­ated with club or group use of facil­it­ies or sites and there­fore loc­al restric­tions may have applied.

Cur­rently the Code makes no spe­cif­ic men­tion of drones. The fly­ing of drones as a leis­ure activ­ity may be inter­preted as fall­ing with the scope of ​‘recre­ation­al pur­poses’ in Sec­tion 1(3)(a) of the Act. It has also been noted that a user could be fly­ing a drone for recre­ation­al pur­poses while stand­ing on land not requir­ing access rights, like a road or a garden, but nev­er­the­less over­fly­ing land where access rights apply.

If fly­ing a drone for leis­ure pur­poses is to be taken to be with­in the scope of access rights, drone users would be required to under­take the activ­ity in a man­ner that is con­sist­ent with the Code’s three guid­ing prin­ciples of respect for oth­er people, caring for the envir­on­ment and tak­ing respons­ib­il­ity for your own actions.