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Archive notice: This article was originally published on January 22, 2019. Links and embedded videos are preserved as part of the historical record.
The desire…
Flying a Phantom or Mavic for a few laps in the countryside, on the open space in the housing estate or the field next door – not allowed without the consent of the respective landowner. In the city park? Not without first obtaining permission from the relevant public order office. And the permission of the landowner is just one of the many requirements that the legislator has imposed on copter pilots. The Air Traffic Regulations (LuftVO) describe the rules for the operation of any aircraft in Germany and publish them in the “Nachrichten für Luftfahrer” (NfL), the official gazette for aviation in Germany (bit.ly/LBA_NFL). Drones are referred to there as “Unmanned Air Systems” (UAS), unless they are used purely for sport and leisure purposes, in which case they are model aircraft and can be classified as model aircraft. Model flying and manned aviation have coexisted since the early days of aviation and divided the airspace between them at an early stage, so that in practice there are virtually no safety-related problems with each other or in public spaces as a whole.
… and the reality
[/vc_column_text][/vc_column][/vc_row]On the ground, during take-offs and landings, they operate outside private property in public spaces. And here, in turn, other regulations independent of aviation law lurk. To put it bluntly, public space is the natural enemy of the copter[/vc_column_text][/vc_column][vc_column width=”1/2″]
[/vc_column_text][/vc_column][/vc_row]However, the legislator also recognises the enormous positive potential of drones: for disaster relief operations, surveying, inspection. In recognition of the fact that a new industry for the commercial use of copters has established itself and created jobs, the legislator has granted the possibility of authorising exceptions in areas that are subject to flight bans under Section 21b of the German Aviation Ordinance.
Only recently, the Federal Ministry of Transport and Infrastructure and the federal states agreed on common principles for the granting of licences and the approval of exemptions for the operation of UAS. A key element here is a guideline for the standardised assessment of the potential danger that may arise from the drone use applied for. In principle, each state aviation authority has so far acted within the scope of its own discretion when granting exemptions. This led to lively discussions in the relevant copter forums, as what was still possible in North Rhine-Westphalia could already be prohibited in Bremen. These state-specific peculiarities should now be a thing of the past.
However, not all legal pitfalls have been eliminated. Flying with camera-carrying copters not only affects aviation law, but also personal, public and municipal law.[/vc_column_text][/vc_column][/vc_row]
[/vc_column_text][/vc_column][/vc_row]Preparations
With this in mind, you have to do a lot of preparatory work to realise a flight legally. The website map2fly.flynex.de, for example, provides an initial indication of whether you are authorised to fly at the desired location. However, the information given there is not legally binding, but in my experience it does provide a very reliable initial guide to where you can expect flight bans or restrictions.
Legally binding information on flight bans can be found on the website of German air traffic control (DFS). However, this only applies to airspace. The situation on the ground has not yet been clarified. In this respect, the search for legally binding information is sometimes more time-consuming. When I start researching, I first go to Google Maps to see the spatial conditions in a 3D view. Then I also have an address that I can enter into map2fly.
Here is an example of the greater Munich area: All coloured areas (including green areas) are marked with operating bans, some of which even overlap.
Information search
However, this does not release you from the obligation to consider other possible reasons for the ban and to seek information from the relevant authorities.
It is also always necessary to clarify whether it is private land or public space that is being flown over, who are the owners and contact persons, do I need a special use permit from the Office for Roads and Traffic for take-off and landing or even a filming permit? This would be the case in Munich, for example, if you want to film in the city centre and use more than just a hand-held camera or shoulder camera and are not filming current news reports.
It is encouraging that the European Aviation Safety Agency (EASA) has relaxed some of the strict flight bans as part of its new risk-based hazard analysis for drones (= SORA – Specific Operational Risk Assessment for drones) if certain conditions are met, and has created pragmatic solutions that make the work of professional copter pilots easier. The Federal Association of Copter Pilots (BVCP) is pleased to report on its website: “Our work results, suggestions and contributions from BVCP experts and the results of many discussions with the BMVI, the state aviation authorities and other organisations have now been largely taken into account (…) and have (…) been widely accepted by the state aviation authorities” and praises “The new NfL offers significantly more opportunities and space for the economic development of the copter industry”.
Nevertheless, even if there are some simplifications: The legal issues surrounding copter flying remain complex. It may cause reluctance or frustration among many pilots or even a defiant “I don’t care” or “Where there’s no plaintiff, there’s no judge”.
But the fact is: legally flying copters in Germany is only possible to a very limited extent or only with considerable effort to obtain special licences. Without proof of knowledge (commonly known as a “drone driving licence”), no or not all exemptions. No legal flying without a licence – with consequences for mandatory insurance cover.
Clients for copter flights, such as film production companies, should also be concerned with questions of insurance cover, as it may not only be the pilot carrying out the flight who is liable if something goes wrong, but also the client. Pilots who do not have a drone licence often do not know what they are not allowed to do.
The following digressions also only provide a limited overview of the complex legal relationships:
§ Section 21a LuftVO in brief
Permission must always be obtained from the aviation authority of the country if you
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- wish to fly with a take-off mass of more than 5 kg,
- want to fly at a distance of less than 1.5 km from the boundary of aerodromes; in addition, the approval of the air traffic control centre and the air traffic controller is required.
Anyone wishing to fly with a take-off mass of more than 2 kg must be able to present a certificate of knowledge from a recognised body (drone licence) that has been passed by examination. Alternatively, a PPL-A licence for manned aircraft.
§ Section 21b LuftVO in brief
It is prohibited to fly drones (take-off mass less than 5 kg):
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- beyond the visual range of the pilot, i.e., among other things, if you can no longer recognise the flight attitude of the object, i.e. literally no longer know where the front and rear are. This is the case, for example, with a Phantom from a distance of around 60 metres and an altitude of 80 metres.
Exception 1: UAS weighing less than 0.25 kg may be flown below 30 m above ground with video goggles.
Exception 2: If a second person always has the UAS in sight and can immediately point out dangers to the pilot, the UAS may also be flown out of sight of the pilot.
- beyond the visual range of the pilot, i.e., among other things, if you can no longer recognise the flight attitude of the object, i.e. literally no longer know where the front and rear are. This is the case, for example, with a Phantom from a distance of around 60 metres and an altitude of 80 metres.
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It is also prohibited to fly above and at a lateral distance of 100 metres
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- from crowds of people, although the new 1:1 rule can be applied in justified exceptional cases under certain conditions (see diagram),
- accident sites, disaster areas and other locations where authorities and organisations with security tasks are deployed,
- Industrial plants,
- Prisons, institutions of the penal system,
- military facilities and organisations,
- Energy generation and distribution facilities,
- Facilities in which activities subject to authorisation of protection level 4 according to the Biological Agents Ordinance are carried out, unless the operator of the facility has expressly consented to the operation,
- Federal trunk roads (the new 1:1 rule may also apply here, see diagram),
- Railway installations, unless the competent authority has expressly approved the operation,
- the boundary of hospitals.
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[/vc_column_text][/vc_column][/vc_row]-
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- over nature reserves,
- over mobile facilities and troops of the German Armed Forces as part of registered manoeuvres and exercises,
- over residential properties if the take-off mass of the device is more than 0.25 kilograms or the device or its equipment is capable of receiving, transmitting or recording optical, acoustic or radio signals, unless the owner or other authorised user whose rights are affected by the operation over the respective residential property has expressly consented to the overflight. However, the controller may be exempted from the ban in justified cases, e.g. if the consent of the property owner cannot reasonably be obtained, see NfL 1-1163-17 for details.
- over 100 m above ground, unless you are flying on a model aerodrome.
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In justified cases, the competent authority may authorise exceptions to the above operating bans, provided that this does not result in a risk to air traffic safety or public safety or order, in particular a violation of the regulations on data protection and nature conservation.
However, it is and remains prohibited to fly
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- above 50 metres above ground level in flight control zones, provided that you have received air traffic control clearance for flying in the flight control zone,
- to transport explosive, dangerous or toxic substances or anything that could cause panic, fear or terror if dropped or released,
- anyone who does not have a take-off / landing permit from the owner of the land ($25 LuftVG) or, in public areas, from the relevant public order office (§ 25 LuftVG).
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The operation of UAS with a take-off mass of more than 25 kg is also prohibited. Some bans can be lifted by means of exemptions. In order to obtain these, the respective state aviation authorities can impose special conditions, e.g. proof of additional practical knowledge or presentation of a drone pilot’s licence, even for aircraft weighing less than 2 kg.
Public use and special use
Regarding the initial question of whether you are allowed to launch the copter from the public footpath: If you launch the copter from the public footpath and secure it with pylons, for example, you are not yet on the safe side. In fact, the responsible regulatory authority and / or police station must be informed in writing in good time beforehand. SORA refers to this requirement in the “ancillary provisions of the operating licence”. It states under point 4: “Within built-up areas in public areas that are generally accessible and usable for everyone and in the context of public events, the responsible regulatory authority and/or police station must be notified in writing in good time in advance. The public order office or the police can prohibit the operation of the unmanned aerial vehicle or have it stopped if this is necessary to prevent dangers to public safety or order. In this regard, the pilot must ensure that he can be reached by telephone at all times.” (from: Nachrichten für Luftfahrer, 1-1163- 17 dated 27 October 2017, Annex A / page 3) However, even before the new, standardised ancillary provisions of the operating permit came into force, the relevant ordinances of the respective local authority had to be observed. These include the so-called special uses. While public use covers everything that can normally be done in public spaces without causing a hazard, a special use always requires a permit. Flying copters is generally regarded as a special use. The Office for Roads and Traffic is responsible for issuing special use permits.
Costs may be incurred in connection with the special use permit. In addition, an administrative fee is charged for the administrative work involved.[/vc_column_text][/vc_column][/vc_row]
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- Quote from the Hamburg Public Order Office: “The use of public traffic areas (roads, paths or squares) beyond the intended use requires a special use permit. This includes construction fences, scaffolding, containers, merchandise displays, outdoor catering, signs or the distribution of flyers and information leaflets for non-commercial purposes, such as political parties or non-profit associations, events / street festivals, information stands, filming and shooting, etc.”
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Once you have received permission for special use, you still need to comply with the relevant safety requirements for the protection of other road users.
Costs for the permit
The fees for such permits are generally between 25 euros and 80 euros. However, due to site-specific particularities, the fees can sometimes be higher.
The fact that the take-off and landing of an aircraft system such as a UAS generally requires a permit is also stated in Section 25 of the German Air Traffic Act:
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- “(1) Aircraft may only take off and land outside the airfields authorised for them if the landowner or other authorised party has consented and the aviation authority has issued a permit.”
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Conclusion
The legislator has now fulfilled its duty to protect sensitive areas in airspace, public spaces and the private sphere from being violated by drones. On the other hand, these new legal regulations affect hundreds of thousands of hobby and commercial pilots who have purchased their copters in the belief that they can fly them harmlessly away from the hustle and bustle, just like hang gliding. Hardly any copter pilots have been able to imagine how complex the legal regulation of the coexistence of copters and public space/airspace and fellow citizens actually is. And many are simply unaware of the legal regulations. This inevitably leads to illegal flying, which exposes those involved to considerable insurance risks. One can only hope that no-one comes to any harm under these conditions. As long as there is no general driving licence requirement for all pilots, as there is for car drivers, we can only hope that every pilot will come to the realisation that it would be better to familiarise themselves with this complex subject matter. As there is hardly any suitable literature on the subject and the Internet provides a wild jumble of information, self-study is likely to be quite time-consuming.[/vc_column_text][/vc_column][/vc_row]
