Planning matters

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When drones collide – new rules for flyers as planning plays catch-up
New laws[1] for drone[2] operators were recently announced by central government, restricting drone flights in the UK to under 400 feet[3] and prohibiting devices within 1km of an airport boundary[4]. Failure to comply will be a criminal offence and could result in an unlimited fine, up to five years in prison or both. In addition, owners of drones weighing 250 grams (that’s the equivalent of a block of butter) and over will need to register details of their drones with the Civil Aviation Authority (CAA) and users will have to sit safety awareness tests. These new rules apply to recreational and commercial operators – including those amateur flyers tinkering with their ‘cheap and cheerful’ purchased from their local Argos store. What is driving these new laws? These new rules are aligned with the aims and objectives of the ‘Grand Challenge’ for the ‘future of mobility’, which was set out in the Government’s ‘Industrial Strategy’[5]. They follow a public consultation[6] that was run last year addressing safety, security and privacy challenges around drone technology and come ahead of the Drone (Regulation) Bill 2017-19 (the House of Commons 2nd reading is expected in early 2019). Among the measures planned for the forthcoming Drone Bill, as well as further secondary legislation amendments, are new powers for the police to order an operator to ground a drone if it’s deemed necessary. The police will also be able to seize drone parts, to prove it has been used to commit a criminal offence. The Government says that ensuring drones are being used safely will pave the way for the devices to play an increasingly important role in society. Demonstrating that the industry can operate safely will be key to its advancement. In the UK, drone use incidents continue to make the headlines, reinforcing public concerns about safety, privacy and security. The number of near misses between drones and aircraft has nearly tripled in the last two years, with 92 incidents recorded in 2017 alone[7]. Chicken and egg – regulation first, or technological advancement? This rapidly evolving new branch of aviation will need a set of standards to support safe, efficient, orderly, reliable and sustainable high-frequency drone operations in an already crowded UK airspace system; these new drone rules could be laying the foundations for such a future legal framework. But what should come first: regulation or technological advancement? Too much regulation too soon could potentially stifle technological advancement but not enough could limit future investment. If regulators are unable to define precise regulations without understanding the new technologies, the industry may be less willing to invest in developing them when there is uncertainty over how the technologies will be regulated. There is a need for a careful balance to be struck.   Current policy and regulatory framework Currently, drone policy and relevant legislation are largely the responsibility of the CAA and the Department for Transport (DfT). Civilian drone operations are regulated and enforced by the CAA. The CAA’s main legislative tool is the Air Navigation Order (ANO) 2016, which draws together legislation covering all aircraft, air traffic management, crew, passengers and cargo. The CAA primary aim is “to ensure that drones do not cause any serious aviation accident, [its] work in this area covers both consumer awareness and engagement across the industry”. Many of the issues surrounding drones are not aviation-related and therefore fall within the remit of other statutory bodies such as the police and emergency services, Highways England and highways authorities, and local councils. To address this, the CAA has signed a memorandum of understanding with the police, DfT and the Home Office to ensure that their areas of responsibility are defined. As the range and scale of drone operations continues to grow, statutory bodies are increasingly aware of how drone operations affect their areas of responsibility and are developing specific policies and guidelines. What is not clear is whose responsibility it is to ensure all measures are joined up. Advancement of the industry may include the full and safe integration of drones into non- segregated airspace. To achieve this requires technology, which is not yet fully developed, for sensing and avoiding air traffic under all possible scenarios. In the interim, Government policy and regulation is likely to focus on drone system reliability and enforcement, as well as training and qualification standards for drone pilots and operators. Other issues are likely to emerge, relating to privacy, security and third-party liability, to improve integration and perhaps just as important, the public perception of drones. The UK Government and CAA are also working with international aviation bodies[8] to develop standards for the commercial use of drones, including how airlines and cargo operators use them and how they will be integrated into airspace. Autonomous Systems Technology Related Airborne Evaluation & Assessment (ASTRAEA) is a UK industry-led consortium focusing on the technologies, systems, facilities, procedures and regulations that will allow highly automated vehicles to operate safely and routinely in civil airspace over the UK. ASTRAEA’s focus is on separation assurance and control (i.e. ‘detect and avoid’ technology) and autonomy and decision making. At a local level, the approach of local authorities towards the use of drones varies. Some have published guidance on their use in their localities, such as policies to regulate the use of drones on any council-owned land. For example, Leicester City Council prohibits the use of drones, both for recreational and commercial purposes, on Council land; this is to limit potential liability arising from the activities of a drone and its operator, including accident or injury, and because of the proximity of their land to private properties. Currently, CAA regulation requires any camera-equipped drone operator who does not have an additional permission from the CAA to have a ground ‘footprint’ below the drone. Within this footprint there should be no uninvolved members of the public. How this is achieved in a busy urban environment is unclear. Is a formal arrangement required with the relevant authority to temporarily restrict pedestrian and vehicular access, or to restrict access to shops, dwellings and other property? Nesta's Challenge Prize Centre, in collaboration with Innovate UK, has launched the Flying High Challenge. This is a programme to convene city leaders, regulators, public services, and industry around the future of drones in the UK cities. The objective is to help cities explore the public attitudes, logistics and safety of drones operating in complex urban environments and develop plans for drone use for their communities. Eight UK cities and conurbations are participating in this programme, including Bradford, London, Preston, Southampton and the West Midlands. Tris Dyson, director of the Challenge Prize Centre at Nesta notes “ultimately, integrating technologies like drones into the London cityscape will be as much about urban planning as it is about technological design[9]”.   What could this all mean for planning? To date, rules governing drones relate to the civil aviation regime, via the Civil Aviation Act 1982 and its enacting and soon-to-be-amended Air Navigation Order 2016, but not the planning regime. This means that there is no planning regulation or policy yet, guiding how the use of drones is incorporated into our environment. This raises some interesting questions for those looking to incorporate drone operations into an existing use, or indeed to set up a standalone ‘drone-port’. Possible drone applications that immediately come to mind are distribution and warehousing facilities for transporting goods (e.g. Amazon, Royal Mail, Sainsbury’s), passenger transport ‘drone-stops’ or ‘drone-parks’ (Uber), stores for ‘COW Sell on Wheels’ (Vodafone), and re-charge facilities (TfL). When would a material change of use occur, such that planning permission should be applied for? What would a drone facility comprise – would it be considered to be an airport, or some other type of development? Would re-charge facilities be required for drones en-route to their destinations? Who would be an affected stakeholder, if a drone development proposal came forward? What are the environmental impact considerations? Would drone facilities be environmental impact assessment development? Could drone use be encompassed within the remit of existing national planning legislation, policy and guidance? Would public safety and risk come to be considered under the planning regime – such as the DfT Safeguarding Circular (1/2003) - or would it be the responsibility of the CAA? Would drone use be a subject for local policy in a Local Plan? As technology continues to advance and drone use increases, it will be interesting to see what roles local authorities and the planning regime will have going forward. To date, technology seems to be leading the charge; whilst policy and law is being just responsive. Nationally, planning (at least via planning policy and guidance), should get on the front foot ready for when drone-related developments do come forward.   [1] http://www.legislation.gov.uk/uksi/2018/623/contents/madeAnnounced 30 May 2018. effective in part from 30 July 2018 with the remaining from 30 November 2019, in an amendment to the Air Navigation Order 2016 (The Air Navigation (Amendment) Order 2018).[2] Drones may also be referred to as remotely piloted aircraft systems (RPAS), small unmanned aircraft (SUA), or unmanned aerial vehicles (UAVs). They come in a variety of shapes and sizes, ranging from small hand-held types up to large aircraft, and could have a multirotor, fixed wing or hybrid version mechanism.[3] The 400 feet legal maximum height limit will apply to drones weighing between 250g and 7kg. Currently, the 400ft limit only applies to drones weighing more than 7kg; craft under 7kg are guided by the CAA advisory Drone Code. The CAA notes that ‘400 feet’ relates to human optical limitations and the ability to maintain a clear line of sight of the drone.[4] Defined as all European Aviation Safety Agency (EASA)-certified aerodromes, licenced aerodromes and government aerodromes.[5] https://www.gov.uk/government/publications/industrial-strategy-the-grand-challenges/industrial-strategy-the-grand-challenges[6] DfT: Unlocking the UK's High-Tech Economy: Consultation on the Safe Use of Drones in the UK, July 2017[7] https://eandt.theiet.org/content/articles/2018/03/drone-and-aircraft-near-miss-incidents-tripled-over-last-two-years/ [8] EASA, the Joint Authorities for Rulemaking on Unmanned Systems (JARUS), the International Air Transport Association (IATA) and the International Civil Aviation Organisation (ICAO) [9] http://www.cityam.com/259457/drones-transform-our-cities-and-were-totally-unprepared

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Draft NPPF: implications for aviation?

Draft NPPF: implications for aviation?

Tabitha Knowles 13 Mar 2018
Hidden amongst all the draft National Planning Policy Framework’s (NPPF) housing headlines are new policies on aviation. My colleagues have already published a blog on the proposed changes to the document as a whole (see our Lichfields’ blog); this blog delves into all things aviation. National aviation policy currently comprises the ‘Aviation Policy Framework 2013’ – soon to be replaced by the impending national Aviation Strategy and new policy framework for the sector (see my previous blog for details). A draft Airports National Policy Statement was consulted on last year and is currently undergoing Parliamentary scrutiny. Within England and Wales, the current NPPF sets out policy on aviation, dealing with aviation safety and surface access provision to support strategies for growth of airports. Local planning authorities are to have regard to relevant National Policy Statements, the Aviation Policy Framework and the NPPF when preparing their local plan policies. Current versus draft Within the draft NPPF, aviation policy is largely unchanged (albeit with a change to paragraph references, as for the rest of the document). In particular: Paragraph 115a deals with telecommunications development and the need for consultation with relevant bodies, if located within a statutory aerodrome safeguarding zone (currently in paragraph 45). Paragraph 200h addresses the need to take account of aviation safety with respect to reclaiming worked land and the aftercare of mineral sites (currently within paragraph 143) . Para 201b deals with aviation safety relating to planning applications for mineral extraction (currently within paragraph 144). Both the current and draft NPPF reference Circular 01/03: Safeguarding aerodromes, technical sites and military explosives storage areas, to safeguard such sites. Key change The key change in the draft NPPF relates to current paragraphs 31 and 33 and promoting sustainable transport – now in draft paragraph 105(e) and (f). Currently, paragraph 31 relates to the promotion of sustainable transport and requires local authorities to ‘work with neighbouring authorities and transport providers to develop strategies for the provision of viable infrastructure necessary to support sustainable development, including large scale facilities such as rail freight interchanges, roadside facilities for motorists or transport investment necessary to support strategies for the growth of ports, airports or other major generators of travel demand…’.  Paragraph 33 states that when planning for airports or airfields, plans should take account of an airport or airfield’s growth and role in serving business, leisure, training and emergency service needs, and that plans should also take account of other relevant policy such as the current Aviation Policy Framework and national policy statements. These polices are all about: developing strategies for surface access infrastructure to support strategies for the growth of airports; and the need to consider the growth and role of an airport or airfield. Of note, paragraph 33 refers to ‘airports’ and ‘airfields’ but the NPPF does not define either, nor does it provide clarification on the difference between the two. So how are these policies proposed to be changed? Draft paragraph 105(e) requires planning polices to ‘provide for any large scale facilities, and the infrastructure to support their operation and growth, taking into account any relevant national policy statements and whether such development is likely to be a nationally significant infrastructure project…’. Examples are provided of large scale facilities which include airports. Draft paragraph 105(f) states that planning policies should ‘recognise the importance of maintaining a national network of general aviation facilities – taking into account their economic value in serving business, leisure, training and emergency service needs, and the Government’s General Aviation Strategy’. Do these proposed policy tweaks go in the right direction, or far enough for the industry? Definitions? The new draft policy makes a clear distinction between ‘large scale facilities’ and ‘general aviation facilities’ but does not define them; these are the only aviation categories referenced. Aviation infrastructure in reality is not limited to being one or the other. There is still no definition of ‘airport’, and the term ‘airfield’ does not feature any longer either. Infrastructure to support an airport’s operation and growth For large scale facilities, the draft policies require that not only should there be policies in place for the airport itself, but there should also be policies for infrastructure that would support the airport’s operation and growth – and not just transport investments as per the current policy. Infrastructure supporting an airport’s operation and growth could include a wide range of developments and land uses, such as warehousing, distribution and logistics facilities, energy centres, education centres, office space and hotels. The draft NPPF acknowledges that airports are not standalone entities and that they can be regional and national economic accelerators, catalysing and driving business development. As aviation-oriented businesses increasingly choose to locate at airports and along transportation corridors radiating from them, an ‘aerotropolis’ emerges; cities are being built around airports, instead of the reverse. As a consequence, aviation involves the delivery - directly and indirectly - of many different forms of development and land uses. There is an important relationship between ‘city’ and ‘airport’, connecting airports to local economic needs and wider opportunities for growth. But would this policy approach apply to smaller airports? And at what point does a facility become ‘large-scale’? Demonstrating economic value – for general aviation only? The draft policy gives focus to identifying the ‘economic value’ (compared to the current ‘growth and role’ terminology) in serving business, leisure, training and emergency service needs. The need to consider the economic value of aviation is consistent with emerging thinking on the new Aviation Strategy and its focus on boosting economic growth, connectivity and skills. But this draft NPPF policy refers to general aviation facilities only. Does this mean that the same considerations – demonstrating economic value - are not required of airports operating as providers of public transport for large numbers of passengers? Business aviation with its strong support for economic development is given no specific recognition; perhaps it should be? Maintaining a national network of general aviation facilities Continuing support for the maintenance of a national network of general aviation facilities is strongly supported by the General Aviation Awareness Council (GAAC). To maintain a network, first it has to be understood what the network is, how it functions (in terms of current capacity and its ability to meet future demand) and its value (both social and economic) at a local and national level – and this must then be clearly and consistently conveyed to the appropriate planning authorities.   The final version of the NPPF, to be published ‘before the summer’, would be better for dealing with these uncertainties – in particular clarity on whether these policies would apply to a select few or to the sector as a whole.   See our other blogs in this series: National Planning Policy Framework review: what to expect? Draft revised National Planning Policy Framework: a change in narrative NPPF consultation proposals – what could they mean for town centres? NPPF consultations – what could they mean for designers? Draft NPPF: heritage policy is conserved… Draft NPPF: business as usual? Draft NPPF: more emphasis on healthy and safe communities Lichfields will publish further analysis of the consultation on the draft revised NPPF and its implications. Click here to subscribe for updates. Image credit: Commission Air / Alamy Stock Photo  

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