The Airspace Above Your Property

[David Isaac]

I think that the elephant in the room here is the cost to revenue of the AUF...errr,sorry( I just hate the acronym) RAAus,

Don I can't help but wonder how much revenue it has already cost RA Aust; I would wager that there are a substantial number of 95-10 aircraft out there that are no longer on the register and the pilots no longer members because all they do is fly on their own properties. I cannot prove that, but I'll bet I am right ... so this is already a cost to RA Aus in revenue and members.

In an earlier post I said ...

 

I still am uncertain whether if you fly any contraption below 500' on your own property that you need anything other than balls? You don't need a drivers license to drive the unregistered Ute on the farm, so why would it be any different if you had an unregistered ultralight and an uncertificated pilot on his own property???

It would be interesting that if a farmer or adolescent was badly injured or killed on his own property in a farm bike accident we would all most likely say how unfortunate and sad it is and unfortunately that is the way it is.

But I would bet if a farmer or adolescent injured or killed himself in an unregistered ultralight with no pilot certificate on his own property, we would all scream "blue murder'.

 

So I ask the question ... what really is the difference ...?

 

I am throwing these thoughts out there to deliberately provoke some considered responses.

 

 

[Guest Andys@coffs]

David

 

CAO 95.10 can be found here:- http://www.casa.gov.au/scripts/nc.dll?WCMS:OLDASSET::svPath=/download/orders/cao95/,svFileName=9510.pdf

 

In my reading of it the only mention of owners property is in relation to the ability to descend below 500ft and the fact that the aircraft can be used for inspection of the owners property, something which would otherwise be considered a commercial activity.

 

The section that deals with the requirements for registration and licensing make no distinction or reference to the owners property.

 

So, my reading, if interpretation is correct, says that if you fly an aircraft that would otherwise be registered using 95.10 for the exemptions required over your own property without current registration or licensing then you are doing exatly what "Old mate" at the dam in Southern NSW did (other than the whole reckless endangerment thing) and if caught in a way that results in "public disclosure" have every likelihood of creating a whole discussion thread that is unlikely to talk about you in a positive light on these forums.

 

In summary, flying over your own land in an unregistered aircraft and or without an RAA license is illegal (IMHO).

 

I believe your question is likely more around the morality of such a flight rather than the legality. I suspect you are arguing such a flight is morally Ok. However If that is the case then until the legality is addressed through a change in the CAO then remeber that if it comes down to being tested in a court of law legality trumps morality all the way up to the very top of the court hierarchy and if flying 95.10 aircraft for cost reasons that avenue is likely well beyond the reaches of any of us.... Although in your case your first name is David, but CASA isnt politely know as Goliath, and slings are a tad out of fashion....

 

Andy

 

 

[David Isaac]

... In my reading of it the only mention of owners property is in relation to the ability to descend below 500ft and the fact that the aircraft can be used for inspection of the owners property, something which would otherwise be considered a commercial activity.

Correct except that you also must comply with the RA Aus Operations Manual which also requires you to have a Low Level endorsement in addition to the 'owner’s permission' requirement. Of course the 'owner’s permission' requirement overrides any CASA approval, because CASA will not give any specific low level approval without the 'owner’s permission'.

Interestingly the 'owner’s permission' as a basic requirement implies that the owner is the 'controller' of the airspace up to 499' agl, just as the owner is the controller of access to his property at ground level, so one could draw the conclusion that the owner is 'controller' from ground level up to 499' agl and perhaps the owner of that space.

 

So, my reading, if interpretation is correct, says that if you fly an aircraft that would otherwise be registered using 95.10 for the exemptions required over your own property without current registration or licensing then you are doing exactly what "Old mate" at the dam in Southern NSW did (other than the whole reckless endangerment thing)

Except that ‘Old Mate’ flew over public property for which he did NOT have permission.

and if caught in a way that results in "public disclosure" have every likelihood of creating a whole discussion thread that is unlikely to talk about you in a positive light on these forums.

As I said we would all scream ‘blue murder’, but really, what is the difference morally and legally between an unregistered farm bike on your own property and an unregistered ultralight. It might not even be an ultralight, it could be any flying contraption, it could be an old Cessna 150.

 

In summary, flying over your own land in an unregistered aircraft and or without an RAA license is illegal (IMHO).

A reasonable reading, but is it not a bit more complex than that?

 

I believe your question is likely more around the morality of such a flight rather than the legality. I suspect you are arguing such a flight is morally Ok.

Actually I am not arguing anything in particular, I am just putting a point forward, I am not so sure it is that clear cut. Can the same rules be applied by the RTA in NSW or Queensland Roads etc. to an unlicensed person in an unregistered ute or farm bike? Can the Police come on to your property and book you for driving an unregistered ute on your own property? Can CASA book you for flying in airspace which is under your control (not public airspace, because anyone has to have your permission to be in 'your' airspace). These are all interesting scenarios that I do not plan to test except the ute thing ... I have done it all my life.

However If that is the case then until the legality is addressed through a change in the CAO then remember that if it comes down to being tested in a court of law legality trumps morality all the way up to the very top of the court hierarchy and if flying 95.10 aircraft for cost reasons that avenue is likely well beyond the reaches of any of us.... Although in your case your first name is David, but CASA isn’t politely know as Goliath, and slings are a tad out of fashion....

Plus I would need a lot more money than I have to take CASA on in the courts … LOL.Where is Kaz our favourite resident legal adviser with all appropriate disclaimers when you need her?

 

 

[David Isaac]

... but really, what is the difference morally and legally between an unregistered farm bike on your own property and an unregistered ultralight. It might not even be an ultralight, it could be any flying contraption, it could be an old Cessna 150.

Here is an interesting twist to my comment in the above post ...What if the unregistered machine you flew on your own property not above 500' agl was not specifically compliant with any ultralight specification and had never been registered ... it could be some home built aircraft that meets 95-10 or other specs or not and has never been registered. Is it reasonable legally to suggest that compliance with any of 'our' CAOs does NOT apply where you fly this 'thing' on your own property below 500'.

Again I don't know the answers to these questions, but this discussion is worth pursuing.

 

 

[Powerin]

Here is an interesting twist to my comment in the above post ...What if the unregistered machine you flew on your own property not above 500' agl was not specifically compliant with any ultralight specification and had never been registered ... it could be some home built aircraft that meets 95-10 or other specs or not and has never been registered. Is it reasonable legally to suggest that compliance with any of 'our' CAOs does NOT apply where you fly this 'thing' on your own property below 500'.

Again I don't know the answers to these questions, but this discussion is worth pursuing.

I was always under the impression you do not own any of the airspace above you property but researching it now it seems you do. So I guess it could be argued that you can legally fly your own aircraft in your own airspace. However the law allows for the public good (for example you cannot play loud music on your own property if it affects others) and does not allow you to infringe on the rights of (or endanger) others. The law also allows aircraft to use your airspace, but not under 500ft without permission. I suspect if you fly unregistered and unlicensesd above 500ft you would start breaking other laws such as those pertaining to controlled airspace, even though it is notionally your own airspace.

 

 

[David Isaac]

I was always under the impression you do not own any of the airspace above you property but researching it now it seems you do. So I guess it could be argued that you can legally fly your own aircraft in your own airspace. However the law allows for the public good (for example you cannot play loud music on your own property if it affects others) and does not allow you to infringe on the rights of (or endanger) others. The law also allows aircraft to use your airspace, but not under 500ft without permission. I suspect if you fly unregistered and unlicensesd above 500ft you would start breaking other laws such as those pertaining to controlled airspace, even though it is notionally your own airspace.

Pete the question would be how much airspace do we own? Given the permission requirement below 500' I would suggest a reasonable conclusion would be to start at below 500' agl. Once above 500' we know we are in public airspace.

 

 

[Powerin]

Pete the question would be how much airspace do we own? Given the permission requirement below 500' I would suggest a reasonable conclusion would be to start at below 500' agl. Once above 500' we know we are in public airspace.

David, as far as I can see the basic common law doesn't put a limit on the height of airspace you own. But as you go higher other laws come into play with give rights to others in the way that airspace is used. There have been court cases where celebrities have tried and failed to sue paparazzi for trespass into the airspace above their properties.

Here's one simple explanation of US laws (not an authoritative source!)...our laws may be similar.

 

 

[Guest ozzie]

CASA have claimed control of all airspace from the ground up, according to what they say. Bluff maybe?

 

 

[FlyingVizsla]

This has been created following discussions on the thread "Should RAA be split ..."

 

Posts (above) have been moved from there.

 

The questions are:-

 

Do you own the airspace above your property?

 

If you do, to what height?

 

Can you fly an unregistered aircraft (just like you can drive an unregistered car) in your own property?

 

Do you need to be licenced if only flying within your own property?

 

Discuss.

 

 

[Suitman]

The questions are:-Do you own the airspace above your property?

 

If you do, to what height?

 

Can you fly an unregistered aircraft (just like you can drive an unregistered car) in your own property?

 

Do you need to be licenced if only flying within your own property?

 

Discuss.

I would like to add:

 

At what height are you "flying"?

 

If an "aircraft" stays on the ground are you required to comply with aircraft or flying regulations?

 

If a vehicle leaves the ground is it considered flight?

 

Hmmmm ...

 

 

[kaz3g]

This has been created following discussions on the thread "Should RAA be split ..."Posts (above) have been moved from there.

The questions are:-

 

Do you own the airspace above your property?

 

If you do, to what height?

 

Can you fly an unregistered aircraft (just like you can drive an unregistered car) in your own property?

 

Do you need to be licenced if only flying within your own property?

 

Discuss.

I don't know what has happened, but I have tried to reply to this thread twice now and they seem to have disappeared up there in the blue. This is a very truncated answer...

 

1. Some rights but not ownership

 

2. See 1.

 

3. Only if you don't mind being prosecuted

 

4. See 3,

 

kaz

 

 

[David Isaac]

Yes Kaz,

 

Your full reply is on the thread 'Ultralight plane crashes in north Queensland' and when we got off topic on that thread with this private property flying subject, AHLocks moved our off topic posts here where Sue (Flying Vizla) had started this thread and somehow Sues post ended up down here instead of as the first post in this thread . Ahh the terrors of moving posts ... LOL

 

 

[Patrick Normoyle]

My understanding was that many years ago, a property owner had rights and responsibilities of use to 300ft above his/her property provided that did not infringe on gazetted or documented airspace or other provisions. This followed in the foot steps of early ultralight aircraft use over your own property or with permission of the property owner of no more than 500ft. With greater numbers, design advancements and uses, came the agreement that AUF/ RAA would govern the body of pilots and aircraft that fall within the listed catagories. These old rules have been long removed and replaced with more modern and appropriate ( sometimes more restrictive ) ones. You can't ask to be allowed into CTA under a new set of rules and such but expect to have the old ways still apply, it's called change. I am not a lawyer, but i am fairly confident that if you tried the "oh i didn't know i needed a lecence or registration" to fly over your own property, the Judge would laught at you for using the IDIOT defence. But good luck to you if you want to try it. Rego, Licence, maintenance and operating costs are all a part of our sport, this is the real world and we have to act responsibily or face the consequences. That dosen't mean we can't try and get the rules changed to better suit or desires, we can always hope.

 

 

[David Isaac]

Interesting Patrick,

 

I often wondered where the NOT above 300' agl came from in the original ANO 95-10. There had to have been some legal basis in that original approval. I wonder what the law says now about the rights and responsibilities a land owner has over certain airspace above their property? Their would have to something otherwise it would be illegal to fly a kite or launch a tethered balloon.

 

 

[Guest ozzie]

0 to 300ft was the airspace that no one else uses. It also left a 200ft buffer from GA that are supossed to operate above 500ft.

 

 

[David Isaac]

Agree Steve, that was the intent, but who is the owner and controller of the 300'? CASA or the land owner?

 

 

[Guest ozzie]

As it was the Dept that gave approval to operate below 300ft then they must be the custodians, if they weren't then they would not have written ANO95:10 to operate in that airspace.

 

 

[David Isaac]

Not so sure, because it still required land owner consent.

 

 

[Guest ozzie]

There was no mention of owners consent needed or required to operate above a private property in the original ANO95:10.

 

 

[Guernsey]

So could I erect a mast of some description 300 or 500 feet on my own property?

 

That would probably be a Council issue.

 

Now if I jumped from a platform with a hang glider on my own property???

 

The mind boggles as to who really owns that space.

 

Alan.

 

 

[Guest ozzie]

Build it and you will have crazy people all over the place, night and day.

 

 

[kaz3g]

So could I erect a mast of some description 300 or 500 feet on my own property?That would probably be a Council issue.

Now if I jumped from a platform with a hang glider on my own property???

 

The mind boggles as to who really owns that space.

 

Alan.

Hi Alan

 

I think the real issue is not who owns the airspace but who controls it for a given purpose.

 

Thus the skyscraper and the 300' tower both require permits from council and an order can be made to pull them down if built without one.

 

In my view, anyone who is prepared to jump off a high platform with a hang glider should be afforded private accommodation with men in white coats to look after their needs, But that's only because I'm scared of heights.

 

kaz

 

 

[FlyingVizsla]

Who owns or controls the airspace? Now, with my Bush Lawyer hat on (free advice worth just what you paid for it) I found the following:

 

The Traditional View of Land - “Cuius est solum” – the person who owns the land owns it from the heavens above to the centre of the earth below – presently that right is severely constrained by lots of other laws (tree clearing, mining, Council by-laws, Noxious weeds, Right of Entry etc)

 

 

 

Transient intrusions are considered trespass Eg. Bullet being fired over land although has made no contact with land; Davies v Bennison

 

Permanent intrusions into airspace above the land can constitute trespass without consent of the owner eg. power lines. This premise allows you control trespassing tree limbs (trim or lop) even though you don't own the tree.

 

Height limitations, so that trespass can only be found where ‘the intrusion into airspace is of a nature and at a height that may interfere with the occupier's ordinary uses of the land’.

 

So I guess if your land was the Empire State Building you would control a lot more air than a pond. I have heard of people trying to stop aircraft above their place (usually celebs wanting a quiet wedding without paparazzi) and failed. There are laws that allow aircraft to transit the airspace above your land, so you can’t stop airlines flying their routes.

 

You can drive an unregistered car on your land because the law only says it must be registered on public roads (and some other places). You can’t fly an unregistered plane because the law says Australian Airspace, and everything above the ground qualifies.

 

It looks like it is a myth that you can fly what you like under 300ft or 500ft.

 

Sue

 

 

[Guest ozzie]

So it looks like the sky starts from the ground up.

 

we really do need our own version of FAR103!

 

 

[Guest Baa Baa]

Don't see the guys in the helicoppters asking my permision to check the power wires at 100ft on my property