Drones above municipalities, but beyond their (regulatory) reach?

The rise of drones not only creates new opportunities, but also raises new questions about regulatory powers and responsibilities. While the use of airspace is largely regulated at European and national level, the effects of drone operations are often felt most directly at local level. What role remains for Dutch municipalities in regulating drone operations?

Introduction

While drones were initially used primarily by hobbyists, they are increasingly being deployed for a wide range of practical applications. Businesses use drones to inspect bridges, wind turbines and roofs. Emergency services deploy them during incidents, farmers use them for monitoring purposes, and public authorities for surveillance and enforcement. The potential is significant: greater efficiency, lower emissions and access to places that are difficult or dangerous for people to reach.

New applications inevitably give rise to new and increasingly complex questions about their regulation and enforcement. Who has the authority to determine where a drone may take off and land, which route it may follow, and what rules apply to the flight itself? Who is responsible for addressing nuisance, infringements of privacy or risks to public safety? Each of these questions touches upon the division of powers between the European Union (EU), the national regulator, the provinces and municipalities. This increasingly gives rise to tension at the administrative level: although the effects of drone operations are often most apparent locally, municipalities do not always have the necessary powers to regulate them independently.

This blogpost explores the background to this division of powers and considers the scope for municipalities to address local drone-related issues within their own areas of responsibility.

Role of the Dutch regulator

The regulation of drone operations is largely governed by European law. [1] Regulation (EU) 2018/1139 provides the overarching framework for European aviation safety, while Implementing Regulation (EU) 2019/947 sets out more detailed rules for drone operations. These include the ‘open’, ‘specific’ and ‘certified’ categories, each subject to requirements relating to the operation, the operator and risk assessment. The ‘open’ category covers low-risk operations that may be conducted without prior operational authorisation, provided that certain conditions are met, such as a maximum flight altitude of 120 metres and operation within visual line of sight. For higher-risk operations, such as certain flights beyond visual line of sight, the ‘specific’ category applies and prior authorisation and a risk assessment are generally required. The ‘certified’ category is intended for high-risk operations and is subject to more stringent certification requirements.

Not everything is, however, determined at EU level. Under the Dutch Aviation Act (Wet Luchtvaart), the organisation and management of Dutch airspace is, in principle, the responsibility of the Minister of Infrastructure and Water Management (I&W). This includes, among other things, the designation of areas in which flying is wholly or partially restricted (Temporary Restricted Area; TRA). In the Netherlands, for example, geographical zones have been designated in which additional restrictions apply to drone operations around certain airports and in low-flying areas. Restrictions may also be imposed in connection with festivals or events such as a NATO summit, or to facilitate the deployment of counter-drone measures around military airfields. Compliance with these rules is supervised by the Human Environment and Transport Inspectorate (ILT).

Other public interests

The primary purpose of these aviation regulations is to ensure safety: protecting people on the ground and preventing risks to other air traffic. Drone operations may, however, also affect other interests, including privacy, nature conservation, noise, quality of life and spatial planning. The protection of these interests often falls within the remit of other public authorities and is governed by different legal frameworks.

The Administrative Jurisdiction Division of the Council of State has accepted that public authorities other than I&W may, on the basis of their own statutory powers, take measures that may in practice restrict the use of airspace. For example, the Minister of Agriculture was permitted, pursuant to its powers relating to nature conservation, to impose restrictions on flight movements over Natura 2000 areas. According to the Council of State, this did not interfere with the powers conferred by the Dutch Aviation Act, because the decision in question was aimed at protecting a different public interest. [2]

The same reasoning is equally relevant to provinces and municipalities. They have their own statutory powers in areas such as spatial planning, public order, safety and quality of life. Measures adopted on the basis of those powers may affect drone operations, but must not be aimed at regulating airspace or drone operations as such. The key question is whether a measure can be based on a municipality’s or province’s own statutory powers and serves to protect a different public interest.

The impact is experienced locally 

Precisely because drone operations may affect a wide range of interests, it is not always immediately clear which public authority has the power to intervene. Concerns about, and the effects of, drone operations are often felt most strongly at local level, while the power to regulate the use of airspace lies elsewhere. Although a mayor of a Dutch municipality may request the Minister of I&W to establish a TRA, the municipality remains dependent on decision-making at national level.

The Association of Netherlands Municipalities (VNG) highlighted this tension already in 2020 in its white paper ‘Drones binnen de gemeente’, noting that the current legal framework does not provide municipalities with sufficient tools to adequately address the challenges posed by drones at local level.  [3]

Municipal councils may, on the basis of their autonomous regulatory powers, include rules in the General Municipal By-law (Algemene Plaatselijke Verordening), provided that those rules concern matters within the municipality’s own sphere of responsibility and do not conflict with higher-ranking legislation. This is also where the legal boundary lies. Where a provision in the General Municipal By-law effectively amounts to regulating the use of airspace, the municipality interferes with the regulatory domain of the Minister of I&W.

An illustrative example is a 2017 designation decision (aanwijzingsbesluit) adopted by the municipality of Heerde. The decision prohibited drone flights in areas designated by the municipal executive on the grounds that such flights in those areas could be dangerous or cause nuisance. This gave rise to the question whether the municipality was, in effect, regulating the use of airspace. The provision was subsequently withdrawn. Kinderdijk provides another example. Residents and millers called for a ban on drones because of concerns relating to privacy and nuisance. A general prohibition under the General Municipal By-law was not introduced, as this would effectively have constituted regulation of the use of airspace. Additional restrictions on drone operations nevertheless apply in this area, as the area forms part of a Natura 2000 site.

An alternative approach can be found in the General Municipal By-law of Stichtse Vecht. This allows the mayor, for the purpose of protecting public order and safety, to designate areas in which the “possession of” drones is restricted. The provision therefore does not directly regulate the operation of drones, but rather their possession within designated areas. In this way, direct regulation of airspace is avoided. However, the question remains whether such a restriction on possession, having regard to its purpose and effect, falls within the municipality’s regulatory powers and does not conflict with higher-ranking legislation.

In addition, under Article 172 of the Dutch Municipalities Act (Gemeentewet), the mayor has powers to maintain public order. Conditions relating to drone operations above or around an event site may also be attached to event permits. In the event of serious public disorder, a disaster or a serious threat thereof, the mayor may also issue an emergency order (Article 175 of the Municipalities Act) or adopt an emergency ordinance (Article 176 of the Municipalities Act). However, these powers are intended to address specific and exceptional situations and therefore do not provide a legal basis for the structural regulation of drone traffic over the municipality.

Finally, municipalities also play a role in the spatial integration of drone infrastructure. Although provinces may have the power to adopt airport decrees for regional airports, municipalities are involved in their preparation and may raise local interests and concerns. These may include the impact on local residents, noise, external safety, landscape quality and the desired spatial development of the area. In this way, municipalities can ensure that local interests are taken into account in the development and spatial integration of drone infrastructure.

Concluding remarks

Drones operating above municipalities are not entirely beyond their regulatory reach: municipalities have some room to protect local interests, provided that they do not regulate the use of airspace as such.

As drone operations become more widespread, the need for action at local level is likely to increase. Calls for greater municipal powers are therefore understandable, but the question remains whether greater municipal control is desirable. After all, drone operations do not stop at municipal boundaries, and different rules from one municipality to another could lead to fragmentation and unnecessary complexity. The challenge, therefore, is to strike the right balance: centralised management of airspace, while leaving municipalities sufficient scope to protect local interests within their own statutory powers.