Getting ready to take off: New rules to consider when using drones on construction sites

New regulations to watch out for when operating a drone on construction sites

Drones can be valuable, cost-effective tools on construction sites. Typically used to conduct aerial surveys or collect data, they can also carry bitumen printers and transport payloads across long distances. As of June 1, 2019, however, drones will be subject to new Transport Canada regulations. Here are some key questions those in the construction industry should consider after the new rules come into effect:

Can I fly my own drone?

Yes, if you comply with the new regulations. The drone’s pilot must have passed an exam and, depending on how the drone is used, complete a flight reviewer assessment. One of the key changes is that all drones, including ones you already own, must be registered. The registration number must be visible on the drone, and the pilot must be able to easily access the certificate of registration.

How much does my drone weigh?

A small remotely piloted aircraft systems (RPAS) will be defined to be a drone weighing between 250 grams and 25 kilograms. Depending on how the drone is used, it may be categorized as a tool for basic or advanced operations. To qualify for basic operations, the drone must be:

• Flown in uncontrolled airspace.
• Flown more than 30 metres (100 feet) horizontally from bystanders (that is, those not involved in the drone’s operation).
• Never flown over bystanders.

If any of the above conditions are not met, you are conducting advanced operations. This triggers additional requirements. Given the bystander rule and the nature of construction projects, drone use on construction sites might be considered to be advanced operations.

If your drone exceeds 25 kilograms, a Special Flight Operations Certificate (SFOC) from Transport Canada is required to fly.

Where will my drone be flown?

Once you determine whether your drone is used for basic or advanced operations, you should take heed of altitude restrictions if you are conducting aerial surveys. An SFOC is required if a drone is flown more than 400 feet above the ground or more than 100 feet above any building or structure if it is less than 200 feet horizontally away from it. Special rules apply if the drone will be flown near airports, aerodromes, or military sites. Given that construction projects may often be near such areas, you should carefully examine these new regulations.

For large construction sites, familiarize yourself with the concept of “visual line-of sight.” This occurs when the pilot continually maintains unaided visual contact with the drone. This allows operators to keep control and scan surrounding airspace to avoid other objects. Though “visual observers” can help keep a drone within visual-line of sight, they need to understand how the regulations apply to them. If visual line-of sight cannot be maintained, a SFOC will be required.

Who will be flying my drone?

Depending on whether basic or advanced operations are undertaken, pilots must meet different licensing requirements. Crew members are also subject to these new regulations, which include a 12-hour alcohol consumption prohibition. If your pilot is flying your drone while viewing a streaming video image (akin to actually being on board), a visual observer has to perform detect and avoid functions.
What are my operating and record-keeping procedures?

There are also multiple provisions on safety and operations, such as establishing flying procedures, conducting pre-site surveys, and flying in acceptable weather conditions. A SFOC may be required if certain loads are being transferred, and operators must keep certain records that can be subject to government inspection. As with any construction project, documentation is key.

What type of drone do I have?

Under the RPAS Safety Assurance rating system, not all drones are approved for all types of operations. Transport Canada has indicated that it will publish an Advisory Circular to provide more information.

What are the penalties for non-compliance?

Depending on the contravention, the maximum fine is $5,000 for individuals, $25,000 for corporations, or imprisonment.

What about privacy, cybersecurity and insurance?

Trespassing and privacy laws should be considered in drone use. For example, if the drone is being used to collect data, procedures may be required to govern its use, storage and protection. Agreements with unions should be reviewed regarding drone usage. Given the increased connectivity on project sites, cybersecurity may be an important aspect to consider. Finally, as accidents can happen, you should consider whether you have the appropriate insurance coverage for property and third-party liability.

Takeaway

The potential use of drones on construction sites is an exciting area of development. That said, time should be taken to learn the new regulations and consider if appropriate risk management policies and procedures are in place before you take off with your drone.

This column first appeared in the June 2019 issue of On-Site. To read through the full issue, click here.

Katherine Ayre is an aviation lawyer at Borden Ladner Gervais LLP. The focus of her practice is in aviation litigation, product liability, autonomous technology and UAV regulations, insurance litigation, municipal defence and occupiers’ liability. Katherine also regularly advises clients on general insurance matters, and helps them navigate the regulatory world in transportation. Prior to becoming a lawyer, Katherine became a licensed glider pilot, and a commercial pilot for fixed-wing aircraft

Adrienne Ho is an associate in the Construction Group at Borden Ladner Gervais LLP.

This article is for information purposes only and may not be relied on for legal advice. Please send any comments to editor@on-sitemag.com