Can drone use become trespass?

Personal and commercial use of drones has increased significantly over the past few years, but the law surrounding their use is still relatively new and uncertain. One particular issue that has been the subject of consideration by the Courts recently is whether the use of drones over other people’s land is a trespass. 

The 2023 case of Anglo International Upholland Limited v. Wainwright and Persons Unknown involved an abandoned dilapidated college seminary building and surrounding land which was popular with trespassers, who camped out at the building and published photographs of it on social media. There was a real concern over the safety of those entering the site and the owners had gone to great lengths to secure it. 

One of the other issues was that drones were flown over the site and on one occasion a drone had come down within the college, with people asking for permission to go in and retrieve it. The photographs and videos taken by the drones were facilitating and encouraging further trespass. As part of the order sought, the Claimant wanted to prohibit drones being flown over the site.

The starting point for the Court was Section 76 of the Civil Aviation Act 1982 which provides that there is no trespass if an aircraft flies over land at a height which is reasonable in all of the circumstances. It was determined that drones could be aircraft for these purposes. However, the Court was satisfied that the use of the drones in this case was not reasonable. The trespassers were using the footage to look for ways to physically access the land and therefore encourage further trespass over it. Alternatively, the height at which the drones were being flown was not reasonable because they were able to capture footage which was then used to facilitate and encourage further trespass. For these reasons, the Court granted an interim injunction for 2 years to restrain the use of drones.

In contrast, in the 2025 case of Mbr Acres Limited and Others v. John Curtin and Others, the Court refused the grant of an injunction against drone use.  The case concerned a facility used for breeding animals for medical and clinical research and the Defendants were not trespassers but protesters, some of whom had set up encampments at the entrance to the site. The Claimants sought injunctions to restrain the Defendants from physically trespassing onto the land and to stop them from flying their drones in a dangerous manner including at a very low height a few times each week.

The Court criticised the Claimant for not putting forward any expert evidence about the height at which the drones were flying across the site (although interestingly, there was no evidence on this issue in the Anglo International case either). In the Court’s view, what the Claimant was actually trying to prevent was the use of drones for filming and photographing (i.e, surveillance by the drones). That ought to have been framed as a claim in nuisance, misuse of private information, breach of data protection and/or harassment rather than trespass. For a trespass claim, the Court held that the critical factor was the height at which the drones were being flown over the land to prove an interference with the reasonable use of the land. In the absence of that evidence, an interim injunction would not be made to restrict the protesters flying drones over the site.

Whilst both of these decisions offer guidance on the Court’s approach to claims for trespass involving drones, different outcomes were reached on the basis of slightly different reasoning. What is clear is that evidence is key about the instances of drones being used, the purpose of their use and the height they are being flown above the land.

Until further clarification is obtained from future Court decisions, Claimants should also consider how they frame their claims and not necessarily just limit them to trespass. It might be possible to bring a claim in nuisance based on the drones interfering with someone’s use and enjoyment of their land..

This article was first published in Property Week on 9 July 2025 and is available here.