Posted on November 15, 2020 by Anna Sinclair 7

Eyes in the sky – (some of) the laws applying to use of drones in NSW

Drones are quickly becoming a favourite operational tool for government agencies, as they provide an affordable and effective means to carry out a range of functions such as surveillance, surveys of unauthorised development, and emergency and hazard management. However, the laws that regulate the use of drones to take photos and videos, particularly above private land, are not clear.

In this blog we consider aspects of the Surveillance Devices Act 2007 (SD Act), the Privacy and Personal Information Protection Act 1998 (PPIP Act), the Protection of the Environment Operations Act 1997 (POEO Act) and the Environment Planning and Assessment Act 1979 (EPA Act) and provide some guidance as to how drones may be lawfully used. 

Regulation under the SD Act

Where  a drone is used to take photos or videos in NSW consideration must turn to the operation of the SD Act. Section 8 prohibits the knowing installation, use or maintenance of an optical surveillance device (which includes a camera on a drone) ‘on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity’, which involves ‘entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier’. ‘Premises’ is defined to include ‘land, a building or a part of a building, and any place, whether built on or not‘ (s4).

Section 8 is a property-based protection and it effectively prohibits a person entering premises such as land or a vehicle without the consent of the owner or occupier and recording activities occurring on the land or in the vehicle. This legislation was drafted before the proliferation of the use of drones, and its application to this technology is not clear.

The critical question for government agencies is when will a drone flying above a private property be ‘on or within premises‘, and therefore in contravention of s8? We are not aware of any case authority that directly considers this issue. 

In the absence of such guidance,  we turn to the common law, which provides that the rights of a land owner in the air space above the land are limited ‘to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it’ (Baron Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902). It is likely that where a ‘premises‘ is land, a Court would find that the “Land” includes airspace above the surface of the Land (that is directly above the limits of the property) to the extent necessary for the ordinary use and enjoyment of the land, and that s8 prohibits the use of a drone for the purpose of recording or observing the carrying on of an activity within that height without consent.

There has been some consideration of what this height may be in the law of trespass which is also a relevant consideration in the context of the use of a drone. Unfortunately, there is currently no Australian case law that considers when aerial photography, recording and surveillance carried out from a plane, helicopter or drone may amount to a trespass to land. We think its clear that aerial imagining companies that take images over 5000 metres above the surface of the land will not be considered to be trespassing.   

The limited cases make clear that it is a question of fact based on the circumstances of a particular case. The question is not whether the intrusion interferes with the owner or occupier’s actual use of the land at the time but rather whether it is of a nature and at a height that could interfere with any ordinary uses the owner may wish to undertake (LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490, 495). Flying an aircraft over a person’s land is not necessarily of itself a trespass (see for instance Bernstein v Skyviews & General Ltd [1978] QB 479).

It has been held in a Queensland case that a jib of a crane about 19 metres above the ground interfered with the owner’s proper use and enjoyment of her land as the jib was an unsightly feature, and a cause of nervousness and apprehension for the owner (see Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1).

Based on our consideration of the cases that may have some bearing on the issue, it seems that s8 of the SD Act may be interpreted to prohibit the use of a drone to record or observe an activity on private land at a height that interferes with the use and enjoyment of the land. It is not clear whether in the context of a drone flight over a property whether that would extend to include a height where the drone is perceptible to the owner or occupier of the land, or where its use may cause annoyance or apprehension and prevent the person from going outside, or carrying on a private activity.

That being said, it seems at least arguable that flying a drone over land on one occasion, or for a short period, does not interfere with the ordinary use and enjoyment of land, and is therefore not ‘on or within premises‘. However, given that there is no case law on this point, an agency may decide to exercise caution and only use a drone over private property with consent (express or implied) from the owner or occupier or where they are authorised  in the exercise of an enforcement power.  

Collection of personal information under the PPIP Act

In addition to the SD Act, government agencies must comply with the PPIP Act when dealing with personal information . This requires compliance with the information protection principles (IPPs) when an agency collects ‘personal information’, which would include drone footage where an individual’s identity is apparent or can reasonably be ascertained from the footage.

The IPPs require that:

• the agency must take such steps as are reasonable in the circumstances to ensure that:
  • before the personal information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of a number of matters, including the fact that the information is being collected and the purposes for which the information is being collected (s10),
  • the personal information collected is relevant to the purpose for which the information is collected, it is not excessive, and the collection of the information does not intrude to an unreasonable extent on the personal affairs of the person (s11), 
• the personal information is kept for no longer than is necessary, and that it is disposed of securely and in accordance with the relevant requirements (s12), and
• the personal information must not be used for another purpose, unless an specified exception applies, including that the individual has consented to the use (s17).

However, there are some exemptions to application of these provisions when an agency carries out enforcement work. For example, if the agency is exercising investigative functions under the authority of an Act (and the exercise of those functions may result in the agency taking criminal or civil proceedings), then the agency does not have to comply with:

• s10, if compliance with the section might detrimentally affect the agency’s complaint handling or investigative functions, or
• s17, if the use of the information concerned for a purpose other than the purpose for which it was collected is reasonably necessary in order to enable the agency to exercise its complaint handling functions or any of its investigative functions (see s24).

Powers of entry under the POEO Act and the EPA Act

Under the POEO Act and the EPA Act, authorised officers and investigation officers (respectively) have powers to enter premises and do things, such as take video and other recordings. This power is arguably broad enough to permit the use of drones on the premises.

An authorised officer who has lawfully entered land can take such photographs, films, audio, video and other recordings as the authorised officer considers necessary (s198 POEO Act, s9.18 EPA Act).

Section 196(2A) of the POEO Act was inserted in 2017 to specifically allow the use of a drone where it provides:

If entry is effected by means of an unmanned vehicle, vessel or aircraft, the vehicle, vessel or aircraft must be operated by or under the authority of an authorised officer.

The powers afforded to investigation officers or authorised officers authorise entry to land and where the powers are exercised strictly in accordance with the relevant Act, the entry does not amount to a trespass.

Where authorised officers or investigation officers are exercising these powers lawfully, the use of any drone will not contravene s8 of the SD Act.

Civil Aviation Safety Regulations 1998 

While the scope of this blog is limited to NSW laws, we note that Drone operators must also comply with the Civil Aviation Safety Regulations 1998, which set out the requirements and limitations governing safe operation of Remotely Piloted Aircraft.

Guidance on using drones

To ensure that a government agency does not infringe the above laws in its use of drones, before flying a drone above private land, it should consider a range of matters, including the following:

1. Does the drone have to operate over private land. If so does the agency have express consent for the use of the drone. It is difficult to see how an agency could establish implied consent in the context of a drone flying above private property.
2. If Agency does not have consent can it rely on any powers (such as under the POEO Act or the EPA Act) to lawfully enter land and use the drone?
3. If the owner or occupier does not give consent, or some other exception to s8 applies e.g covert surveillance is being undertaken, or a drone is being used across a number of properties for emergency or hazard management:
   •  what height will the drone be flown and recording at, and will the use interfere with the use and enjoyment of land ? If it will, then (in the absence of any statutory power or case law) there is a risk that a Court considering a matter may find that the drone operating a camera may be ‘on or within premises‘  and is being used in contravention of s8 of the SD Act.  The use may also amount to a trespass and any such illegality will mean that any evidence gathered by the use of the drone may not be admissible in proceedings. Civil proceedings for trespass may also follow.
   • is the drone likely to be flown at a height where an individual’s identity is apparent or can reasonably be ascertained from the footage? If so, then the agency needs to consider whether any of the IPPs apply, or whether it is exempt from those requirements.

If you have any questions about the usage of drones or any other matter arising from the enforcement of environmental and planning laws please contact Anna Sinclair, Senior Associate on (02) 8235 9713 or Carlo Zoppo, Partner on (02) 8235 9705 .

Amended 17 November 2020 to include reference to s 196(2A) of the POEO Act