Who owns the skies? Will GA be crushed by commercial interests?
- Credit: Uber Elevate
With big business betting on UAVs − drones and pilotless flying taxis − ownership of the sky might be worth billions of pounds a year. But organising this complex flow of traffic could see GA crushed under the pressure of commercial interests.
“Who owns the sky?” I wondered aloud. Had I asked the question in the thirteenth century, in the rule of King Edward the First, the answer would have been pretty straightforward: cuius est solum, eius est usque ad coelum et ad inferos. That is; “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”.
The simple ad coelum (‘to the sky’) principle−that the sky above the land is owned by the landowner−served us well for the next five hundred years. If your neighbour’s tree grew over your garden wall, then he was trespassing; if the eves of his house encroached your land, then a court would force him to knock them down. A legal action in 1587, Bury v Pope, confirmed this principle in common law and there it remained as solid as a rock until 1783, when the French upset the apple cart by inventing the hot air balloon.
The pesky brothers Montgolfier then started trespassing above property all across France. The notion of “aerial trespass” had lawyers salivating at the prospect of new litigation. For the next one hundred and fifty years legal debate about aerial trespass raged, eventually being resolved in America.
We are three paragraphs into this story and I am regaling you with obscure court rulings made hundreds of years ago but, don’t worry, this is not senility setting in. The point is, the apparently innocuous question “Who owns the sky?” is actually quite complex, and it has ramifications for all of us in recreational aviation. It is a developing story that has been centuries in the making, but which is now close to a critical juncture.
If you investigate the legal status of the sky, you will find for instance that a debate is smouldering at the United Nations regarding its upper boundary. At the moment, the fantastically-named United Nations Office For Outer Space Affairs says that the Kármán Line, at one hundred kilometres above sea level, is where outer space begins and airspace stops. Nothing above the Kármán Line belongs to any nation; space is supranational (just in case you wanted to fly your Piper Cub
LANDMARK CHICKEN RULING
That leaves us with the bottom limit of airspace to define. Where exactly is it? Let’s pop across the pond to post-war Greensboro, North Carolina where Mr Thomas Lee Causby, a chicken farmer, alleged that his chickens were being so frightened by aeroplanes landing at a nearby military training airfield that his birds were caused to “jump up against the side of the chicken house and the walls and burst themselves open and die”. Very distressing.
Mr Causby sued the government; the case went to the US Court of Claims, and then on to The Supreme Court in 1946 where, modifying centuries of law, and setting out a legal viewpoint now shared by most nations, the Court concluded that the ad coelum doctrine ‘has no place in the modern world’. The Court noted that, were it to accept ad coelum as valid, ‘every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.’ However, the judgement also ruled that ‘if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere.’
Without defining a specific upper limit, the Court stated that flights over the land could be considered a violation if they led to ‘a direct and immediate interference with the enjoyment and use of the land.’ Given the damage caused by the low, frequent military flights over his farm, the Court determined that the government had violated Causby’s rights, and he was entitled to compensation.
This learned legal principle then came whanging back across the pond at a high speed. In 2017 the Sun newspaper reported that the RAF was paying seven million pounds of compensation annually for damage caused by low flying aircraft. The Sun reported that
‘A parrot owner won £2,200 after a giant Hercules transport plan roared over his house and caused his feathered pet to drop dead’. Ad coelum, Polly!
So, we now know more or less where airspace is located: from the edge of outer space right down to the ground, excluding only that bit of the atmosphere that landowners need for their own current or future use, over which they have an “Air Right” and for which, incidentally, there is a lucrative market in many places, like New York, and London.
Who then owns the airspace over Britain? The post-war Chicago Convention gives us the broad brush picture: ‘The territory of a sovereign State is three dimensional, including within such territory the airspace above its national lands and its internal and territorial waters.’ This means that all the space above our islands, and at least twelve miles out to sea, is British. That is clear enough in an international context, but who is the actual owner of our airspace? The question is important because Britain’s airspace may prove to have a value that has yet to be exploited.
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There is a relevant precedent. A very clever man called Professor Ronald Coase, a British economist and Nobel Laureate, developed a theory in the late fifties at the University of Chicago. Coase said airwaves−the electro-magnetic spectrum−which had been regulated for good order, but not exploited for hard cash, could be monetised, and a market thereby created. Nothing much happened until 1990 when plucky New Zealand, pestered by wannabe mobile phone operators, auctioned some of its spectrum, thereby realising Professor Coase’s market based system for access to airwaves.
Ten years later, in 2000, the market in airwaves was big business around the world, so much so that the UK Treasury received a not insubstantial £22.5b from selling airwaves to five mobile telephone operators. Bear in mind that we didn’t know radio waves were even a thing until 1880, when Heinrich Hertz discovered them. Administered by Ofcom−which is the airwave regulatory equivalent of the CAA−the UK earns a little under £2b from airwave sales most years. Money from thin air. It doesn’t take an enormous leap of imagination to see that Britain’s airspace might be similarly valuable, thus its ownership−and therefore commercial rights−is a vital, not an esoteric question.
PROPERTY OF THE STATE, OR THE CROWN?
British airspace might be owned by either the Crown or the State. The distinction is important, the one not being quite the same as the other. If the Crown were the owner of UK airspace, in the same way it owns the UK seabed (as confirmed in the Continental Shelf Act of 1964) then our airspace would be under the control of the Crown Estate Commissioners. The Commissioners, who are a semi-independent body, are generating £4b over the next decade from leasing patches of seabed for offshore wind farms. The money they raise goes direct to the Treasury (and partly pays for the Sovereign Grant) and control of the seabed assets rests with the Commissioners, not Parliament nor Government ministers. So, in the case of our waters, the situation is reasonably clear.
When it comes to the airspace, however, it is unclear who owns it, although the law says that the CAA is in charge of administering and regulating it. And, very recently, the CAA made a stealthy move in this realm. Tucked away innocuously, perhaps innocently, in section 3.2 of CAA publication, CAP 722C, Unmanned Aircraft Systems Airspace Restrictions Guidance and Policy, published just a few months ago in December 2020, is the bold assertion that ‘airspace is a State asset’. Note the use of the word State, not the word Crown.
I think we can reasonably assume that the use of the word ‘asset’ can be taken to mean “a valuable thing”. This statement, ‘airspace is a State asset’, can be seen as an animus possidendi by the CAA because the Authority has asserted the State’s possession of UK’s airspace. This is significant because section 2 (4) of the 1982 CAA Act states that, ‘… the CAA is not to be regarded as the servant or agent of the Crown… and that its property is not to be regarded as property of, or held on behalf of, the Crown’.
It follows that if our airspace is a State asset, as the Authority asserts, then it would probably fall under the commercial control of the Department for Transport, the CAA being the obvious body to administer exploitation of the asset. Keep in mind that in our post-Brexit, Covid-stricken world the CAA is subject to two conflicting demands. First, it must grow its regulatory capabilities in the light of fast emerging technology (from Cornish space shots, to Royal Mail delivery drones, to unmanned commercial and blue light services flights), as well as taking on many functions that had been farmed out to EASA until Brexit. This isn’t going to be cheap. Second, it will have to do all this without imposing massively increased fees and charges on an impoverished conventional aviation sector. The question then, is from where will this money come?
MORE TRAFFIC, MORE MONEY
Forgive me if I speculate a little. Perhaps the CAA has been observing Ofcom, whose budget is £130m a year, but which is offset many times over against the billions of pounds in revenues brought in by the airwave sales that the regulator organises. By similarly charging fees for use of the sky, in addition to charging for regulatory services on a cost-recovery basis as now, the CAA could significantly increase its revenue, out of which it could fund a larger annual budget, as well as remitting healthy dollops of cash to the Treasury. Discovering that one unexpectedly owns a valuable asset like the sky would be a great help in squaring the CAA’s circle. Like buying a house that needs a new roof, and then finding a Type 35 Bugatti hidden in the barn. I can’t see Parliament objecting to a plan like this. Everyone loves a magic money tree.
To that regards, we must note that CAP 1711 Airspace Modernisation Strategy openly states that the CAA needs more money and more legal powers to do its job. It also says: ‘There will be a need to consider the economic and financial models that will be used to deliver the services required by new types of airspace users. This could result in changes to current CAA or other charging mechanisms.’ Yikes!
I don’t think that we will be asked to cough up for our recreational gambolling in the sky. At least, not ostensibly. After all, to continue with the Ofcom analogy, certain activities will surely be exempt: you do not need a licence to use your car key fob, or for your home wifi, or indeed, to use your mobile phone, your bluetooth speakers, or your remote control model tank, all of which use the electro-magnetic spectrum.
If we in our flying machines aren’t going to be shaken down for cash then who might be? CAP 1711 says that it could be the new airspace users. We might recoil at the thought of a host of drones delivering parcels, remotely piloted Airbuses full of stag parties jetting off to Ibiza, and Toyota EVTOL taxis taking granny to bingo. But the reality is that big business is betting on some or all these technologies actually working, and coming to a sky near us (probably quite soon). Charging these new entrants for access to our skies would raise few objections.
HOW WILL GA BE AFFECTED?
However, even if we ourselves are not forced to pay for venturing aloft, it doesn’t mean that we will escape new technical requirements, and concomitant hefty costs and possibly restrictions. These changes would be in the name of airspace safety. Yes, you can see where this is going, but it will be for our own good (or at least that’s what we will be told).
ICAO, EASA, the FAA, the CAA, and a multitude of other acronymed parties have been considering, proposing, detailing, opining and ruminating on how this new airborne technology will fit in with existing airspace users, including us in General Aviation. The one uniting factor is a conviction that this new aerial technology will soon be whizzing hither and thither, and no one yet has said “over my dead body”. Consequently, these organisations all recognise that Air Traffic Management (ATM) and Unmanned Traffic Management (UTM), have to be addressed, and quickly so. New regulations are being drawn up with indecent haste, but even so they lag the technology.
My bet is that the first large scale roll out of commercial technology will be delivery drones.
The details of whether such a thing is practical and how drone deliveries will work is beyond the scope of this article, but in my view, work they will. A paper, A Cost Analysis Of Amazon Prime Air (Drone Delivery), published in the Journal For Economic Educators in 2016 makes one simple, compelling argument why drone delivery is going to work−it’s the money. The cost of delivering a package by truck, said the paper, is $1.20, the same parcel delivered by drone is projected to cost $0.41. Three parcels by drone costing the same as one by truck, and that projection was made in 2016. In the five years since that report, the technology and costs have improved in quantum leaps. Trials are currently in progress in Scotland, at Goodwood, and at many other locations, both here and abroad. A study released in January under UKRI’s £300m Future Flight Challenge scheme claims that freight carrying drones can significantly undercut their conventional competitors in a surprisingly wide range of scenarios.
It’s not just a myriad of small drones operating below four hundred feet with which we will have to cope. ‘U-space’ will be everywhere. Bigger, remotely piloted vehicles (RPVs) will be active in our controlled and uncontrolled airspace. Late last year the Coastguard, a blue light service, carried out search and rescue trials with a Hermes 900 drone which has a wingspan of fifteen metres and a mass of 1.2 tons. The trial was a huge success. How long before Bristow goes active with Hermes to save lives at sea? Try objecting to that.
The drones whizzing around delivering packages will replace many vans and trucks, all of which currently pay to use the roads. Is it unreasonable then to expect Amazon’s Prime Air, or UPS’s DroneUp, or Royal Mail to pay a user-fee for the privilege of using our airspace? Would taxpayers see any reason for Amazon to be given a free ride? Au contraire, I think that conjuring money from thin air would be an astute political move. In fact, I think it is an irresistible proposition.
The flip side of this coin is that those who pay the piper will demand to be allowed fully to exploit the asset for which they have so handsomely paid−and they will expect the CAA makes sure their precious drones aren’t put at risk by random air traffic crashing into them. We recreational aviators will be the poor relations, and will have to fit in under sufferance.
Stick with me for some more speculation. Drone operations and trials beyond visual line of sight (BVLOS) are currently carried out by segregating parcels of airspace from which we are excluded. This is annoying, but is at least localised in time and space. But if future drone operations were to be confined to segregated airspace, then this sequestered space would inevitably expand in proportion to the demand for drone deliveries and services from both consumers and suppliers and service providers, and our recreational aviation would find itself squeezed vertically as well as horizontally. That is an uncomfortable thought.
The alternative is to integrate airspace. EASA’s thinking on this is unambiguous as David Phipps reports in the latest Euro Air Sports newsletter: ‘Where [an] U-space airspace would be established within uncontrolled airspace, manned aircraft would be required to “continuously make themselves electronically conspicuous to the U-space service providers”. This places obligations on manned aircraft to provide information about their position to the U-Space service providers “at regular intervals” and with a level of accuracy, integrity, legitimacy of source and continuity as determined by the Agency.’
There have already been objections to the roll out of mandatory EC, “The CAA is basing this entire programme on a set of assumed drivers and projected increases to traffic, which we believe more evidence is required to justify... Most infringement incidents are minor and cause no safety risk to commercial travel. It therefore seems that these moves are designed to benefit the commercial efficiency of Air Navigation Service Providers whilst light aviation shoulders the burden.” Those words were spoken in 2019 by Grant Shapps while Chairman of the All-Party Parliamentary Group on General Aviation.
The Rt Hon Grant Shapps is now Secretary of State for Transport, a department which commissioned the 2020 report, UK Approach to Recreational General Aviation Safety: An Independent Review. The analysis said (chapter 3.6): ‘Developments in aviation safety have resulted in a very high level of safety in Commercial Air Transport (CAT). Applying the same standard to private or non-commercial flying would, in effect, eliminate private flying as it would be impossible to achieve the levels of safety achieved by CAT in the modern age.’ The report concluded that current GA safety levels are perfectly acceptable. However, it did not discuss what happens when the sky is full of drones.
I think mandatory electronic conspicuity (EC) is the thin end of the wedge. Wait until we’re required to say where we are going, and when, and to what level of accuracy we intend to fly, and told what kit we must carry to make that possible. Mandatory flight plans and autopilot, anyone?
The CAA magazine, Clued Up, takes this issue head on in its Autumn 2020 edition which I quote at length because it is worrying: ‘Even the average enthusiast drone costing well under £1,000 comes fitted with technology that’s pretty rare in the average GA aircraft. That includes GPS navigation and automatic prevention of entering airspace that the drone doesn’t have permission to use, auto stabilisation, emergency auto return to home, simple collision avoidance and, in newer drones, electronic devices. Many, but not all, future applications for drones will be at lower UK airspace levels, so building a fuller electronic real-time picture of operations in the airspace will be key, particularly among GA and military users.
‘Increasing the use of EC devices is only one part [my italics] of the bigger ‘detect-and-avoid’ system, but it is one of the more crucial and effective ones. The CAA’s new innovation team has been working with a number of organisations and companies to help industry drive the issue forward.’
The CAA is acting fast to develop new regulations for ‘shared airspace’. Commercial pressures that would result from selling airspace rights could easily prejudice our regulator to favour commercial operators over recreational users. This could have a truly horrible effect on GA.
THE RIGHT TO ROAM
Perhaps you, like me, enjoy bimbling around with no particular place to go, perhaps some looping and rolling, followed by a bit of a random aerial ramble in the countryside. Will we find that our frivolous aerial roaming is at odds with the essential business taking place in an airspace filled with EASA’s ‘service providers’ who pay for the use of the sky? Are we on the verge of having our rights curbed and our freedom to fly curtailed? Will recreational aviators become restricted like ramblers who must stick to footpaths and roads, and must not trespass on private property, and who have only been allowed to roam freely over specially designated wild, open countryside since 2000? It took one hundred and sixteen years for ramblers to win their right to roam. Might we be on the verge of losing ours?
We need to get assurances about our status as soon as possible.
We need to fight, as Grant Shapps was doing, for our place in the sky!