Credit: zephyr_p/Adobe Stock

Roberta Downey
Vinson & Elkins, London

Ciara Ros
Vinson & Elkins, London

Marie Devereux
Vinson & Elkins, London

Introduction

Over the past decade, drones have transformed from being a rarely used curiosity to a necessary cost-saving innovation and powerful tool which is deployed almost as standard practice across a number of industries, including in particular, the construction, energy and infrastructure sectors. Today, drones are used regularly by construction companies at all stages in the project cycle: from digitising construction sites for the purposes of improving planning and design, operations and recording progress on projects,^[1] to performing contractual obligations during Covid-19 lockdowns and force majeure situations, to virtual site visits and visual aids in formal proceedings. For example:

∙ In July 2022, the Balfour Beatty and Vinci joint venture (BBV) estimated that it would save £50,000 a year by carrying out faster and cheaper site surveys using drones.^[2] The BBV has been tasked with designing and building the largest section of the first phase of the new HS2 high speed rail line in the UK, being the largest infrastructure project in Europe and the most important economic and social regeneration project in decades. The savings estimate has since been updated, forecasting even greater savings by using drones of £5m over five years.^[3]

∙ According to DroneDeploy’s 2022 State of the Drone Industry survey, 69 per cent of construction respondents planned to expand their use of drones beyond aerial mapping, and 54 per cent considered drones would become increasingly common by 2024.^[4]

∙ By 2030, drone use in the UK construction and manufacturing sector is projected to result in costs savings of £1.6bn, with the full impact of drone adoption in the sector projected to result in an uplift of £2.8bn in GDP.^[5]

The increasing frequency and more diverse applications for using drones, combined with the acceleration in technology and potential changes in regulation, mean that drone-users must navigate a minefield of legal risks. This article will discuss these uses as well as the legal risks and considerations which drone-users should be aware of.

Core uses of drones in construction

It is evident that the use of drones is on the rise, but what are the key areas in which drones are currently used in construction?

Pre-construction planning

One of the key areas in which drones can be used, both by employers and contractors, is in the pre-construction planning stage of a project. Employers may be able to use aerial images and data captured by drones to map out the site (or sites) for a potential project before even taking the step of allocating land. Traditionally, this has been used by state or state-owned employers, who have access to a wider range of options for situating their projects. However, such data could also be used by any employer in assessing the layout of a project within the footprint of a specific site, or choosing between competing site options. In due course, it may be that such data is included as part of the package of survey information provided in a tender process, thereby mitigating the cost and time spent with competing teams of tenderers visiting the proposed site to collect data and identify key areas of concern. Clearly, the use of drones is unlikely to be a complete substitute for a site visit and/or conducting site surveys in most projects, particularly where bidders are being asked to assume the risk for ground conditions and/or owners accept no responsibility for the accuracy of the surveys and other information provided to the bidders. In such cases, bidders would be well advised to obtain more specific information from samples and other ‘on the ground’ data in order to be able to verify the information that has been provided and price the risks. However, the use of drones may nevertheless help to cut costs by reducing the size of the team required to attend. The use of drones therefore has the potential to create a more level playing field and/or encourage more tenderers to submit bids in projects where the costs of conducting such surveys and collecting the necessary information to be able to prepare an informed bid may otherwise have become prohibitive.

Similarly, a preferred bidder and/or the ultimately successful contractor may later use drones for more detailed planning ahead of construction, particularly for linear projects covering large distances (such as roads and railways) or projects in remote and less accessible environments. For example, the contractor may use drone data to construct maps of the project site, including 3D plans, topographic mapping overlay and layout mapping. In addition, drone data may assist with estimating the volume of available materials if used with comprehensive sampling, by comparing area size (including vertical measurements) to samples taken within the set area that was measured, mapping the distances for construction (such as for haulage roads), and identifying risk zones within the project site. This may allow for a more accurate assessment of costs, reducing the need for a large mitigation pot of costs and providing for wider financing options.

Monitoring progress

Once construction commences, drones have typically been used to monitor progress at the site. For example, drone data could be used to map out actual progress of construction over pre-prepared site drawings to ensure that the work is being completed in accordance with the original plan and agreed layout. If progress shows that the construction has gone off plan, the contractor will have a chance to promptly address this and assess why the planned construction has changed.

Drones may also allow contractors to spot errors more quickly, particularly in harder to reach areas (including elevated site locations and deep foundations where issues such as honeycombing may occur), and ensure they can be rectified before costs escalate too much or the errors become irremediable. The contractor may also use drones to monitor and map out repairs contemporaneously and design the remedial schedule in a way to minimise delays to completion. The use of drones may also save on the costs of additional scaffolding (which workers would otherwise rely on to monitor hard to reach areas), manpower for review that can be deployed on other parts of the project, and the costs of other equipment for monitoring.

Employers may also use drone data to maintain their own records, particularly if there are concerns about a dispute over performance or delay. Keeping clear and accurate records not only provides evidence in the event of a dispute but may also help to prevent the dispute escalating, in view of the multiple viewpoints that can be captured in drone imagery and date/time-stamps for accuracy, which may be persuasive to the other party.

Security and safety

Finally, drones may play a part in increasing security and safety at the project site. Common site accidents for personnel are falls, and, as noted above, the use of drones may replace the need for personnel to monitor and inspect areas that carry more risk at the site. Similarly, the use of thermal drones may be used to monitor equipment for overheating or keep a keen eye on any other risk of fire that may break out at the site. This will allow a quicker response time to incidents, and in time drones may be used for quick deployment of safety resources in the event of fire or accident. This will be particularly beneficial in remote or difficult terrain where road transport is more perilous or a slower route to get to the incident site.

Drones may be used to monitor the location and state of equipment on the project. At all sites, but particularly large sites, monitoring the location of various pieces equipment can be a time consuming task. Cross-tracking the location of equipment via drones against a database of equipment being used on the project can assist in quickly locating equipment. This not only allows for easier and more efficient management of equipment, but may also allow teams to rapidly review the condition of the equipment for required repairs or permanent removal. In addition, using drones to regularly monitor equipment could discourage, and assist with solving issues relating to equipment theft.

Legal risks and considerations

While considerable benefits can be reaped from using drones on construction projects, drone users should bear in mind the legal risks and considerations which come with such use.

First, data privacy and confidentiality issues are likely to come into play where drones are equipped with cameras or sensors to take photographs, record video footage or otherwise capture data over a certain geographical area (eg, as part of layout mapping) or over a working site (eg, to monitor works progress during construction). The use of such drones, particularly where they are operating from a high vantage point and in populated areas, is likely to result in the inadvertent collection of data from individuals who are not the intended focus, which may infringe on their right to privacy and other rights relating to personal data.^[6]

Crucially, the data may include personal data which may result in individuals being identified. This could include, for example, images of vehicle licence number plates, video footage showing recognisable clothing and body language of an individual (even where their face is not visible), or audio, such as a recording of their voice. Such data is more likely to be subject to strict regulation. Certainly in the UK and in the EU, the GDPR (and its British equivalent) applies where personal data is collected or processed. In the US, data privacy regimes differ across state lines and will need to be considered by state.

In many jurisdictions, it will therefore be important to assess how best to mitigate the risks of interfering with data protection rights or privacy, for example by providing a privacy notice accessible to individuals in the relevant area informing them that a drone is in use, and adjusting the flight path taken by the drone and the height at which it is flown. Drone operators will also want to conduct a data protection impact assessment and consider: the equipment and technology used on the drone; the quality of the data being recorded; the extent to which the image or sound resolution is necessary for the purpose of the task in hand; whether the recording can be stopped and started mid-flight; and, how such data is stored and managed.

As with any other electronically stored data, data stored on drones is susceptible to being hacked (electronically) or stolen (physically). Any drone operator should therefore ensure there are appropriate physical and cyber security measures in place to protect such data. Otherwise any hacked or stolen data might not only compromise confidential information but also potentially expose the drone operator to liability (eg, if personal data or trade secrets belonging to a third party are leaked). Any data breach will take on particular significance when the drone footage or recordings contain personal data, particularly in jurisdictions such as the UK and the EU where the party in control of the drone will be subject to a stringent data privacy regime.

The use of drones over or near residential areas may also lead to tortious claims for trespass or nuisance. It is therefore important to conduct assessments prior to planning any drone flight to ensure minimal interference with third-party properties and relevant airspace. To mitigate the risks of such claims, drone operators could seek first to obtain permission from neighbouring landowners before flying over their land; navigate the drones firmly within the boundaries of the relevant site where possible; or program or pilot the drone to avoid unnecessarily taking photographs or otherwise capturing data in relation to neighbouring properties and their residents.

It is therefore important to ensure that the pilots responsible for carrying out the drone flights are well-trained to have regard to the above considerations. This is in addition to being properly authorised to operate a drone in accordance with the relevant national or regional requirements (eg, in the UK, drone pilots must be registered with the Civil Aviation Authority (CAA)). This is key to avoid falling foul of local legislation as well as minimising the risk of negligent piloting or accidents which could give rise to liability for drone operators (eg, property damage or personal injury to third parties).

As commercial drone use is a relatively new development and the law regarding drones and other unmanned aircraft systems continues to be updated regularly, it is important to keep up to date with the latest regulations. Contractors and employers who are prepared to use drones should further ensure that they have thoroughly checked local regulations and all applicable legislation before operating any drone flights to avoid any unintended breaches of the law, and carry out the appropriate risk assessments (including any required under data privacy regulations).

Looking ahead

A key trend we expect to increase is the combination of drone use with other technology. This can already be seen in, for example, the overlay of CAD drawings over drone created maps of the site. However, other industries are developing technologies that may be replicated. One key example is Amazon’s use of drones alongside driverless vehicles for delivery. The construction industry may see a combination of drone use alongside automated equipment to carry out site tasks, particularly to assist with more dangerous works, with risk to operators and for tasks that need to be completed in areas with difficult access routes.

Another example of a trend we may see is the replacement of cross-site road transportation of smaller equipment and materials by drones. This is likely to be used for journeys involving treacherous terrain, steep slopes, higher ground, or other hard to reach site locations. Drone use not only saves on fuel costs but is also arguably more environmentally friendly, assisting the construction industry in reducing its carbon footprint. However, any technology used will need thorough testing in a variety of environments to ensure there is no risk of accident when heavy equipment or materials are being carried airborne over the site. Any mishaps may have severe consequences including worker injury and potentially significant property damage, for example if any items were dropped on explosive materials.

Finally, we expect to see an increase in the regulation of drones both in the UK and abroad, as incidence and diversity of drone use increases. We also look forward to greater clarity in respect of the interpretation of existing legislation as the body of case law develops. A key consideration for all drone operators will be to keep abreast of changes to regulations, particularly in light of the differences in approach depending on jurisdiction. Given the rapid and continuing adoption of drones for use on construction projects today, a clear and coherent approach in addressing privacy and safety concerns specifically with respect to drones will be welcomed by employers and contractors alike.