Commercial uses for drones

 

Dr Catherine Ball is a world leader in the non-military application of drone technology. She highlighted some really important issues for property owners at The Property Council New Zealand National Conference held in Melbourne, 13-15 September.

 

Firstly it’s important to note that there are all sorts of drone use beyond delivery applications. These include emergency response, building and utilities assessment and repair and maintenance.

 

Consent is needed to use the airspace

 

Under Civil Aviation Authority (CAA) of New Zealand “AC101-1” (24 September 2015) (Part 101), people using ‘remotely piloted aircraft systems under 25kgs’ (or drones) need to have the consent of the property owner before flying above the property. This is the property issue, which is what I am most interested in. Privacy considerations – also relevant, are a separate topic.

 

There is the ability, using “AC102/1” (Part 102), for an operator to obtain a certificate for an unmanned aircraft that cannot operate strictly within the limitations of Part 101. That might include situations where it is not practicable or possible to obtain this consent. Whether certificates are given extensively for commercial drone operators remains to be seen. Health and safety and privacy are big considerations here. Assuming commercial operators cannot easily obtain certificates, let’s consider the consent requirement and property rights.

 

The consent required here is not formal legal consent, but will this develop, a bit like cell phone technology did through the ’90s and early 2000s, where easements and licences will be granted (to drone operators and users) as drones adopt commercial uses.

 

There will be issues with simply obtaining consents. Who will consent be needed from? What are the terms of that consent?

 

To use existing transport corridors, such as the road or train network, would NZTA, Kiwirail and the relevant Councils responsible for the consent of the local roads? That decision might be complex, especially around issues such as health and safety and insurance. Would that be enough for all the intended routes though? LINZ might need to consent if crossing the foreshore or Queen’s chain for example? Other waterways might be under Council control or that of the Harbour Master.

 

Do any rights already exist that could deem consent? For example, landowners and utility companies might consider whether existing easements held by parties like Transpower, Vector and others will permit the use of drones along existing easement corridors? How wide are the rights given to utility companies under existing legislation and will they deem consent as given?

 

Those complexities might be why operators look instead at easements to create a formal legal network on terms that are acceptable to them.

 

New easements for drone operators?

 

We may see easements being granted to companies like Amazon to enable them to fly the most cost-effective and quickest routes from their service centres. In the US, avigation easements are used to grant the right to fly over an owner’s land for other purposes. There is information online about how these might be valued in the US context. Is this another valuable property right we all might have in the future, therefore?

 

We see no difficulty creating easements here in NZ granting rights to drone operators. The first three of the four essential characteristics of an easement are satisfied easily enough:

 

1. There must be servient land (land subject to the easement) and either dominant land that benefits or rights granted in gross (for example rights might be granted to a person or company, like Amazon).
2. The easement must accommodate the dominant land, if there is any (that won’t be applicable here if an easement in gross* to e.g. Amazon).
3. Each must be separate persons (the dominant and servient landowner cannot be the same, or neither can the servient landowner and the person entitled in gross).

 

The further requirement is that:

 

4. The easement must be capable of forming the subject matter of the grant:
   • The right must be capable of being created as an easement; and
   • The right must be sufficiently definite.

 

We have easements in NZ at present that allow aircraft to take off and land for example, so use for drones is just an extension of that in my view. It’s an issue that will need some working through though. Considerations include:

 

• Vertical boundaries (how far into the airspace is owned by a registered proprietor of land) are determined by common law currently. The person who owns the land, owns to the heavens and to the centre of the earth, subject to statute. Civil aviation law permits planes for example. Statute could take these commercial rights for drones away theoretically.

 

• In order for an easement to be registered at LINZ, the area must be surveyed. If the easement is just for airspace how do we survey and define that? Airspace property boundaries are impossible to see. We have survey plans at present that define airspace for other purposes e.g. restrictive covenants as to height. This will be for the surveyors to solve.

 

• Bodies corporate have separate considerations also. The roof above a unit titled property is often owned by the body corporate but there are many complexes where the top floor unit owners might own the roof together. Those owners might, therefore, have all the rights.

 

We look forward to finding solutions to this as the uses for drones develop.

 

By Denise Marsden

 

*An easement in gross is a legal right to use another person’s land for as long as the owner owns that land or the holder of the easement dies.