The use of small, unmanned aircraft, known colloquially as drones, on civil engineering and construction projects has exploded in the last 5 years as the technology has become more readily available, reliable, and cheaper. Drones have revolutionized construction activities and have contributed to an astounding change - all from a technology that is still potentially in its infancy and which will see further significant change, adaptation, development, and evolution in the future of construction and civil engineering.
With the use of drones becoming ubiquitous, not just in the field of construction, it was only a matter of time before legislation was required in Hong Kong to regulate their use rather than rely on the outdated legislation more suited to conventional aircraft. After a delay to its introduction in Hong Kong, the Small Unmanned Aircraft Order (“SUAO”) was gazetted on the 16th July 2021, to regulate the use of unmanned aerial vehicles/systems (“UAV”/”UAS”) or small unmanned aircraft (“SUA”) in Hong Kong.
There are wide powers in the SUAO for the Director-General of the Civil Aviation Department (“CAD”) to specify operating, rating and training requirements, and it is likely that measures will be introduced specifically for flight operations in the conditions commonly found in the construction industry and conducted by only those that have passed suitable training and are “fit for conducting the type of flight operation because of the person’s knowledge, experience and competence as may be necessary for conducting the type of flight operation”.
- SUAO gazetted on 16 July 2021 is the regulatory regime for SUA less than 25kg. The SUAO adopts a risk-based approach categorizing SUA by weight plus operation risk. Increased regulatory requirements are imposed the heavier the SUA, and the riskier the flight.
- SUA are categorised into 3 different weight categories: (i) Category A1 - 0.25kg or less (low risk); (ii) Category A2 - greater than 0.250kg but 7kg or less (medium risk); and (iii) Category B – greater than 7kg but no more than 25kg (high risk).
- SUAO provides for a registration system, labelling and insurance regime for SUA and registration and training of operators.
- SUAO comes into effect on 1 June 2022, with a 6-month grace period, except for offences related to endangering acts/restricted zone flying.
- SUAO is subsidiary legislation to the Civil Aviation Ordinance (Cap 448) (“CAO”).
SUAO is designed to be a flexible regime which it is hoped will allow the development of innovative applications of SUA and the use of them in Hong Kong. The legislation is designed to keep pace as the technology develops for as wide an implementation as possible, and is similar to other jurisdictions which acknowledge that a registration/labelling/operating risk level regime strikes a balance between allowing safe public and private use without unduly onerous regulatory requirements.
Recognising the need for regulation of SUA activity Hong Kong, the CAD, in 2017, commissioned a study resulting in the publication of a report in which 6 key recommendations were made:
a) Set up a UAS registration system for UAS above 250 g; b) Establish a risk-based classification model for UAS operations, taking into account the weight and type of operations of UAS (e.g. where and how the UAS is operated) and develop the operating standards and requirements for each risk category; c) Establish training and assessment requirements based on the risk category, which should improve operators’ safety awareness and knowledge. The duration and complexity of training or assessment should be based on risks of UAS operations; d) Establishment of a UAS (drone) map, primarily to cover no-fly zones and areas suitable for UAS flights; e) Develop insurance requirements for UAS based on the risk category; and f) Indoor operations of UAS to be further studied.
Following a 3 month consultation period, the legislative proposals in respect of SUA then went to Legco for their views on 24 June 2019 (“Legco Paper”)
Current Legislative Regime
What is a Small Unmanned Aircraft?
A SUA, for construction purposes, is typically a remote-controlled platform with usually four or more propellers, a small engine or electric motor, fuel supply (whether battery or otherwise) to which is attached various sensors, for example a camera, or scanner.
But the legal definition of a drone in Hong Kong is:
“a machine that can derive support in the atmosphere from the reactions of the air”;
“a machine that can derive support in the atmosphere from the reactions of the air, other than the reaction of the air against the earth’s surface”
In other words, it might seem obvious, but it’s an aircraft.
In the SUAO an SUA is defined as:
“a power-driven machine that can derive support in the atmosphere from the reactions of the air, other than the reaction of the air against the earth’s surface which is operated with no pilot on board”
The differences from the Air Navigation (Hong Kong) Order definition are underlined and the definition in the SUAO has been fine-tuned specifically for UAV’s.
Under the existing legislative framework in Hong Kong, unmanned aircraft are
classified as aircraft and are governed, particularly in respect of safety, by virtue of the Air Navigation (Hong Kong) Order. This legislation falls under the purview of the Civil Aviation Department.
In addition, there are various other regulations and pieces of legislation that operators must comply with (for example compliance with requirements on radio frequencies, and personal data legislation).
In summary, the current key ordinance is:
- Civil Aviation Ordinance (Cap 448), particularly s.4 (“Where an aircraft is flown in such a manner as to be the cause of unnecessary danger to any person or property on land or water….”)
whilst the current key regulations are:
- Air Navigation (Hong Kong) Order (Cap 448C), particularly s.48 (no person shall “recklessly or negligently cause or permit an aircraft to endanger any person or property”. Currently for SUA weighing less than 7 kg and for recreational purposes, no application to CAD is required (s.100). However, if the proposed operations are for non-recreational purposes (ie hire or reward) then a permit needs to be obtained from the CAD by the operator Art. 22 of the Air Transport (Licensing of Air Services) Regulations (Cap. 448A)
- Air Transport (Licensing of Air Services) Regulations (Cap 448A), particularly s.22
- a person must not use any aircraft for the provision in Hong Kong of any air service except under, and in accordance with the conditions of, a permit granted by the Director-General of Civil Aviation”
Other relevant current Ordinances:
- Telecommunications Ordinance (Cap 106) and Office of Communications Authority for regulation of radio frequencies
- Personal Data (Privacy) Ordinance (Cap 486) and Privacy Commissioner for Personal Data for privacy protections.
None of this legislation is specifically designed for SUA, even more so given that it is a technology which is still developing. The current legislation was developed many years ago for large traditional aircraft and is not particularly suitable or flexible for modern SUA, hence the need for specific and self-contained subsidiary legislation to govern these new vehicles.
All aircraft (including SUA) that weigh more than 25 kilograms will still be subject to Air Navigation (Hong Kong) Order (at least in the near future) but SUA over 25kg, will likely be subject to future specific legislation in a category “C” band.
These broad and unfocused legislative provisions covering the endangering of any person or property, operators have given rise to the CAD issuing safety leaflets and guidelines for the operation of SUA in Hong Kong which operators are required to comply with.
Commercial Activities Currently
Before any flight of a drone for hire reward, approval is required from the CAD. This is a purpose-based approach (not operational risk-based or weight based) and involves a multi-step process involving:
- Establishing the airworthiness of the SUA and obtaining a Certificate of Registration and Certificate of Airworthiness issued by the CAD. This involves filing two separate applications;
- Following this, permission is required for each flight of the SUA 28 days in advance of the flight together with supporting documents (intended flight path/operations manual/land owners permission/insurance policy/pilot qualifications etc) to the CAD at least 28 working days before flight date;
- Operators must submit an Application for Permit for use of aircraft for the provision of air service - Unmanned Aircraft Systems;
- Prior approval the Office of the Communications Authority on the use of radio frequencies is required to ensure that air traffic operations and air navigation equipment will not be interfered with or disrupted;
- After all of this has been done and approved the CAD/Aerodrome Supervisor must be notified before flight and after each flight. Operators are also required to keep, (and make available for inspection by the CAD on request) records of every flight;
This is a complex registration/approval regime designed for aircraft and it is easy to see the temptation to fly SUA without the required permissions on risk of sanction. The reality is that for SUA commercial operations, the current regime is wieldy and inflexible.
Small Unmanned Aircraft Order
The legislation is well laid out and split into 5 self-explanatory parts: Part 1- Preliminary; Part 2 - Operation of SUA; Part 3 - Registration, Rating Permissions; Part 4 - Enforcement; and Part 5 - Miscellaneous.
SUA are classified by - (i) Category A1 - 0.25kg or less (low risk); (ii) Category A2 - greater than 0.250kg but 7kg or less (medium risk); and (iii) Category B – greater than 7kg but no more than 25kg (high risk). The weight includes everything carried by or attached to the UAV.
The basic requirements for operating small unmanned aircraft (Category A1 operating in compliance with all operating requirements, and not in a restricted flying zone or carrying dangerous goods, are exempt from the basic requirements) are:
(i) the SUA is registered and carries a clearly visible registration label on the outside of the aircraft issued by the CAD;
(ii) the SUA has an insurance policy in place;
(iii) the SUA has certain specified safety systems in place on the SUA or the device used to control the aircraft
(iv) the pilot is a registered with the CAD and has a rating to conduct the type of flight operation being undertaken; and
(v) for a category B aircraft - the aircraft is operated for the flight in accordance with further permissions required.
SUA owners are therefore required to register their SUA under Category A2 and/or B operations before commencement of flight, whilst those operating SUA under Category A2 and/or B operations are also required to be registered before commencement of
Flight. It is anticipated that the CAD will establish an electronic portal (mobile app/website) to ease registration. After registration, SUA owners for Category A2 and/or B operations are required to display a unique registration mark on the SUA in accordance with the labelling format required by CAD, whilst those operating SUA for Category A2 and/or B operations should also ensure that the registration mark is properly displayed.
In respect of insurance for a category A1 aircraft, no insurance is stipulated as long as it is flying within s.12(3) conditions (see below for the conditions). For category A2 aircraft the specified amount is HK$5,000,000 as long as it is flying within s.12(3) conditions
For category A1 or A2 not flying within s.12(3) conditions, the amount is HK$10,000,000, and for a category B aircraft - $10,000,000;
The s.12(3) conditions are:
- that the aircraft is operated in compliance with all operating requirements applicable to the aircraft at all times during the flight;
- that the aircraft is outside restricted flying zones at all times during flight; and
- that the SUA does not, at any time during the flight, carry dangerous goods.
The operating requirements are:
- that the aircraft is not operated for the flight at specified hours of the day;
- that a visual line of sight is maintained with the aircraft in a specified way;
- that the flying altitude of the aircraft is not higher than the specified altitude;
- that the flying speed does not exceed the specified flying speed;
- that the distance between the aircraft and any person who is not involved in the flight operation, measured horizontally and at any altitude, is not less than the specified distance;
- that the distance between the aircraft and any vehicle, vessel or structure that is not under the control of the remote pilot of the aircraft for the flight, measured horizontally and at any altitude, is not less than the specified distance;
- that the distance between the aircraft and the remote pilot of the aircraft for the flight does not exceed the specified distance;
- that the aircraft does not carry any person or animal during the flight;
- that nothing is dropped from the aircraft during the flight except for the specified purpose;
- that the remote pilot of the aircraft for the flight operates no more than the specified number of unmanned aircraft at the same time; and
- that the dimension of the aircraft (including everything installed in, carried by or attached to the aircraft) does not exceed the specified dimension at all times during the flight.
These requirements are specified by the Director General of the CAD and will be published from time to time by notice in the Gazette, but in the Legco Paper for example, A1 and A2 were limited to visual line of sight daylight flying only and had maximum altitudes of 30m and 90m respectively. The maximum flying speed of A1 was 20km/h, whilst for A2 it was 20km/h if between10m and 30m from uninvolved people/structures/vessels and 50km/h if more than 30m away. The standard operating requirements set out above would severely curtail many useful functions of SUA in the construction and engineering environment, and it is anticipated that in conjunction with the training and rating sections of the SUAO, that rating and training appropriate to SUA operations and flights in the construction industry will be made available through the Director General’s powers.
In respect of ratings, a person may apply to the Director General for the assignment of a rating for conducting certain types of flight operations. The certain types of flight operations that each person can conduct ender each of the ratings will be specified and published by the Director General. It is anticipated that this is where the detail of construction and engineering operations will be fleshed out. The Director General may only assign a rating to permit a person to conduct certain types of flight operations if that person is “fit for conducting the type of flight operation because of the person’s knowledge, experience and competence as may be necessary for conducting the type of flight operation”. In ascertaining such fitness, the Director General may request the person to take any training course and/or assessment approved by him. This flexibility will allow for suitable training and rating as well as pre-determined flight operations in the construction and engineering environment to help ensure competency and thus improve safety. Generally though, all persons flying A2 and/or B SUA for Category will be required to go through safety information and knowledge test on safe SUA operations during the registration process. Those flying category B will need to undertake more rigorous training and competency assessments.
The SUAO sets out a number of regulatory actions that may be taken for non-compliance. Depending on the types and seriousness of the offence these actions range from warnings, suspension/revocation of registration certifications, variation/suspension or revocation of permissions, to prosecution in court. Upon successful prosecution, the maximum penalty is stipulated to be a fine not exceeding level 6 (i.e. $100,000) and/or imprisonment for a period of up to two years in the case of conviction on indictment.
The regulation of SUA use is overdue, and the SUAO sets out the basic requirements for SUA use. Coupled with the flexibility of the Director General’s powers to require training and assessment together with his ability to specify certain types of operations and issue ratings, we would anticipate that the types of flights and uses in the construction industry (and others) will be considered by the CAD and suitable training programs and assessment made available in order to maximise the development and use of SUA in construction and engineering. In the meantime, contractors, surveyors and engineers should ensure that they are careful not to breach the SUAO upon it coming into force.