Drones raise important legal issues that extend way beyond nuisance

It started off as a simple nuisance claim. But the 2023 landmark Supreme Court decision in Fearn v Tate carries legal implications that reverberate far beyond that of traditional nuisance, raising important questions about protecting individual privacy. Indeed, it could create a new precedent with respect to emerging technologies – particularly drones – that depend on ‘visuals’ to operate.

The background

Since 2016, the Tate Modern’s 10th-floor external walkway has offered visitors a 360-degree panoramic view around London. However, it has also created direct views into the adjacent block of flats, leading the owners to bring a claim for nuisance.

After the High Court and Court of Appeal both dismissed the claim, the case went to the Supreme Court, where it was overturned by a majority of 3:2, the finding of the court being that the viewing platform did allow visitors to cause a nuisance to the adjacent flat owners.

The court held that the view afforded into the owners’ flats went far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use of the Tate Modern’s land. The court felt that flat owners should not have to take remedial steps to avoid the adverse consequences of the Tate Modern’s actions, adding that there was no judicial authority for the proposition that visual intrusion cannot give rise to a cause of action in private nuisance.

The ruling highlights how a nuisance can be caused by any means, and there is no limit to what may constitute a nuisance. However, the real point of interest with respect to drone technology came from Lord Leggatt, who, in his leading majority judgment, noted that developments in technology could markedly increase the potential for such claims. He went on to imply that the constant observation of land from CCTVs might constitute a nuisance, where the level of intrusion was of an ‘unreasonable duration and intensity’ and, indeed, that public utility was not a defence to a claim of nuisance. So, what does this mean for drones?

Rising number of drones

Fast forward to the not-too-distant future: Amazon has already announced it will start using drones to deliver parcels in the UK in under an hour, while aviation minister Baroness Vere has said the government has plans for commercial drones to be ‘commonplace’ by 2030. The focus of interest groups and the legislature so far has been on safety, and rightly so – but what about the law of private nuisance?

To put the situation in context, five billion parcels are delivered in the UK every year, of which about 3.5 billion weigh under 2 kilos, making them deliverable by drone. If only half this number were to be delivered by air, this would mean 1.75 billion parcels being delivered across the country every year by 300,000 drones in a staggering five million drone flights a day. These are startling figures.

The visual nuisance arguably caused by residences near a drone flight path is a discussion for another day. However, it is the intrusion into people’s homes caused by drone video monitoring that causes a real privacy issue. In California and Texas, Amazon already has drone postage, with the flight path of every delivery being monitored on a screen for navigation purposes. With five million drone cameras looking into people’s windows as they go from door to door, just imagine the level of intrusion of ‘unreasonable duration and intensity’ people could claim in nuisance.

The future legal landscape

In Fearn v Tate, the constant observation by visitors to the viewing platform constituted a level of intrusion that the ordinary person would consider to be a substantial interference with the ordinary use and enjoyment of their home. Whether the same can be said of drones could have a big impact on deliveries, alongside their wider use.

There are always going to be legislative workarounds: operators could be required to inform the public of drone usage in their area and to obtain consent for recording, or no-fly zones could be established to prevent intrusive drone flights, for example. Whatever the decision may hold, it will have to involve overcoming the decision in the Fearn v Tate case.

While the legal future of drones may not yet be clear, it will be interesting to observe the implications of this landmark ruling as they continue to unfold. One key question will certainly be how members of the public will feel about five million drones looking into their homes as they do their daily rounds.

Jonathan Warner-Reed is a partner at Davitt Jones Bould