The benefits

Recent advances in technology have made the use of drones a commercial reality for those operating and maintaining wind farms and other energy assets, both on and offshore. The Financial Times recently reported that the oil and gas sector were already embracing this new technology to inspect and monitor offshore rigs, pipelines and other infrastructure, and the wind sector is close behind, with one leading drone inspection service provider reporting a tenfold increase in work in the renewables sector for monitoring blade leading edge erosion.

It is easy to see why. Drones bring benefits such as a reduced need for personnel scaling hard to reach areas at height (with the financial savings and improved health and safety that that brings) as well as allowing for increasingly sophisticated data analysis and asset monitoring through high resolution images and complimentary software.

But for many, adopting such technology comes with an unfamiliar legal and regulatory framework that drone operators and customers of those services must navigate, and so we set out a number of those areas here.

Legal and Regulatory Framework

The two principle areas of law regulating drone use in the UK are the Data Protection Act 1998 and the Air Navigation Order 2009.

Data Protection Act 1998: Compliance with the Data Protection Act 1998 is regulated and enforced by an independent authority, the Information Commissioner's Office (‘ICO’), which maintains guidance relating to the Act. The ICO recommends that drones with cameras (rather than for, e.g. delivering small payloads to personnel working at height) should be operated in a responsible way, respecting the privacy of others. Distinction is drawn under the ICO’s CCTV code of Practice between ‘hobbyist’ use of drones and organisations using them for commercial purposes, with the latter category subject to a greater level of data protection obligations.

ICO advice for businesses using drones for commercial purposes such as inspecting assets for damage is to avoid recording when flying over other areas that may capture images of individuals and performing a robust privacy impact assessment. Whilst this risk may be low given the location of many wind farms (particularly offshore), many onshore wind farms can be closely reached by members of the public and other landowners and this guidance should be followed when such third parties may be nearby. Any data that the drone has recorded must then be stored securely, and disposed of when no longer required. Guidance is also provided on drone operators wearing highly visible clothing identifying themselves as a drone operator and placing signage in the area (such as on fencing around an onshore wind farm) informing individuals that filming by drone is taking place at the location and where more information on the images captured by drones can be found.

Air Navigation Order 2009: Pursuant to the Air Navigation Order 2009, save where otherwise permitted by the Civil Aviation Authority (‘CAA’), small unmanned aircraft (of a mass of less than 20kg) equipped with any form of surveillance or data acquisition must not be flown over or within 150 metres of any congested area or gathering of more than 1000 people, or within 50 metres of any person, vessel, vehicle or structure which is not under the control of the person in charge of the aircraft. During take-off and landing a small unmanned surveillance aircraft may not be flown within 30 metres of any person (other than the operator or a person under the control of the operator). The person in charge of the small unmanned aircraft must be satisfied that a flight can safely be made and must maintain direct visual contact. The Air Navigation Order 2009 also prohibits any person from recklessly or negligently causing or permitting an aircraft to endanger any person or property.

The person controlling the drone must also request permission to fly the aircraft on a commercial basis (which must be renewed every 12 months). According to CAA guidance, some proof of the pilot’s overall airmanship skills and awareness and his or her ability to operate the drone safely will be required. A list of National Qualified Entities with approval from the CAA to conduct assessments of operators seeking permission from the CAA is available on the CAA website.

In the future, we may see more use of ‘segregated airspace’ and ‘sense and avoid’ systems which allow for drone activities to take place beyond the visual contact of the operator, and on 6 May 2015 the CAA published a general exemption from the Air Navigation Order 2009 exempting certain categories of persons in charge of the drone from the requirement to ensure direct unaided visual contact with the drone.

European Regulations: The European aviation community and legislators met in Riga earlier this year to discuss the future conditions under which drone services should be provided, and published a number of principles to guide the European regulatory framework. These included recommendations that drone services must not be less safe than is accepted from civil aviation in general, that safety rules for piloting drones should be developed at a European level by the European Aviation Safety Agency (EASA), and that there should be clear accountability for drone use by ensuring there is at all times an identifiable owner or operator of the drone. EASA has since been tasked by the European Commission to develop a regulatory framework for drone operations as well as concrete proposals for the regulation of low-risk drone operations, and following a recent consultation, it is due to submit a technical opinion to the Commission by the end of this year.

Contractual Considerations

Owners and operators of assets such as wind farms wishing to enter into contracts for the supply of commercial drone services will have a number of points to consider, including:

Permissions and Competence: Drone services agreements should as a minimum oblige the drone provider to (i) demonstrate the pilot’s competence and ability to conduct drone operations;  (ii) supply proof that all necessary permissions are in place (on a recurring basis) and (iii) carry out its obligations in accordance with all applicable laws, regulations and guidance.

Indemnities from Third Party Claims: Customers of drone services should seek indemnities for claims brought by third parties arising as a result of drone activities, which would adequately cover claims in respect of trespass and nuisance as well as injury to persons and damage to property.

Data Protection: The contractual arrangements for drone services should as a minimum include obligations to conduct privacy impact assessments, informing the public when flying, and establishing procedures for the safe processing of data that is captured or recorded by drone use.

Insurance: Careful consideration will need to be given to the insurance arrangements for both injury to third parties and damage to their property as well as to the drone and the wind farm itself. In order to ensure such insurance arrangements provide sufficient cover, specialist brokers may need to be instructed.

Effect on Existing Service Agreements: Where drone services are not being provided as part of the main supply and service and availability contracts for the wind farm, asset owners should review these agreements in order to ensure they understand the interface between the services provided by the drone provider and the entity with overall responsibility for maintaining the wind turbines. Loss of damage to the wind turbines and any loss of operational hours or reduced availability caused by the drone will invariably be an employer risk that may be difficult to pass through to the drone service provider. Other contractual points to consider are whether the main service and availability contract ensures cooperation with other service providers (to enable performance of their respective obligations to occur concurrently), and whether evidence gathered by drones on behalf of the employer should be accessible by the main service provider. Where drone services are replacing traditional inspection methods under an existing service and availability contract there are often minimum standards that any replacement service provider of drone services need to meet.

Comment

With thousands of wind turbines to inspect annually (in the UK alone), the commercialisation of drone inspections has come at a great time for an industry on a mission to drive down cost and increase resilience and safety of their wind farm assets. However, as this article highlights, there is an evolving technical, legal, regulatory and contractual landscape that requires careful navigation by wind farm owners and operators before the full benefit of drones can be achieved.