Contract law is based on reciprocity – you generally can’t enforce a promise unless you have given or promised something in exchange for it. The legal term for that “something” is consideration.
The classic definition of consideration is something of value in the eye of the law. This can include payment and/or promises (that’s why you sometimes see “in consideration of the fees for our services the parties agree…” or “in consideration of the mutual promises contained herein…” at the start of a contract). The courts have taken a very wide view of what constitutes consideration; they are not generally concerned with the adequacy of consideration and will not interfere with the bargain between the parties.
So far, so good – but the Air Navigation Order (ANO) and the UK CAA talk about “valuable” consideration – what does that mean?
Well, the ANO defines valuable consideration as “any right, interest, profit or benefit, forbearance, detriment, loss or responsibility accruing, given, suffered or undertaken under an agreement, which is of more than a nominal nature“.
Further guidance can be found in the Summary of the Meaning of Commercial Air Transport, Public Transport & Aerial Work (here) that was drafted by the CAA’s Secretary & Legal Adviser’s Office. This document states that valuable consideration “has a very wide meaning, including the provision of goods and services“.
Therefore, it’s clear that if you are a drone operator and you offer flying services for money – that is aerial work. The term “aerial work” is clearly intended to be wider that this though, it’s intended to capture situations where money does not change hands, including the provision of services in return for something else like promises, rights etc.
CAP 722 suggests there could be a bit of wriggle room for some in-house flying – it states that “Flying operations such as research or development flights conducted ‘in house’ may, in some circumstances, not be considered as aerial work provided there is no valuable consideration given or promised in respect of that particular flight” my view is that this should be construed fairly narrowly – basically allowing organisations to conduct some internal research and testing. It’s not a loop hole for large organisations who set up their own in-house drone team to avoid permissions!
The CCA is clear on its website that its permission is not need if the drone will not be flown close to people or properties, and you will not get “valuable consideration” from the flight – which they define on the site as “payment”, but as I’ve explained is likely to be considered wider than just $£ payments.
So, you’ll need a permission to fly your drone from the CAA if you receive anything valuable in return for your flying services (money, promises, rights etc).
It’s worth pointing out that if you don’t receive valuable consideration but fly within a congested area or close to people or property then you also need a CAA permission.