The airspace of the Czech Republic is organized and regulated mainly with regard to national, security and defense needs. Legislation in the field air law, especially air traffic in specially protected areas, are also greatly influenced by the interest in environmental protection. Due to the growing popularity of flying among the general public related to rapid technological development and improving the affordability of aviation equipment, the number of people who participate in air traffic in specially protected areas without being sufficiently familiar with the relevant legislation, including the risks associated with it, is increasing .
The aim of this article is to summarize the legal regulation of air traffic in specially protected areas for users flying devices intended for recreational and sports flying, with the exception of unmanned systems. As an introduction to the issue, it should be noted that Act No. 114/1992 Coll., on nature and landscape protection, lists national parks, protected landscape areas, national nature reserves, nature reserves, national natural monuments and natural monuments as categories of specially protected areas. Other legal regulations that are relevant to the topic of the article are Act No. 49/1997 Coll., on civil aviation, Decree No. 108/1997 Coll. implementing the Civil Aviation Act. Air traffic is also heavily regulated by European regulations, for the purposes of this article it is worth mentioning Commission Regulation (EU) No. 923/2012 of 26 September 2012 establishing common rules for flying.
The so-called a major amendment to the Nature and Landscape Protection Act from 2017 significantly broadened the ban on flying over national parks. From the mentioned year, the restrictions are as follows they are not allowed to fly in the entire territory of the national parks contrary to the conditions laid down in a measure of a general nature issued pursuant to another legal regulation, with the exception of flights to ensure the security of the state, protection of persons, property or public order, and flights for the needs of nature protection authorities, see provisions of § 16 paragraph 2 letter l) of the Act on Nature and Landscape Protection. It should be added that before the aforementioned major amendment to the Act on Nature and Landscape Protection, it was forbidden to organize sightseeing flights by aerial means of transport in the entire territory of national parks. It was not possible to consider flights of regular transport lines, air taxis, sports flights, service flights of the Czech Army, flights of the integrated rescue system as sightseeing flights, even if they had a negative impact on the natural environment of the national park.[1]
Legal regulation of air traffic in national parks
The special regulation according to which the relevant administrative acts containing the conditions for flying over national parks are issued and to which the Nature and Landscape Protection Act refers is the Civil Aviation Act, specifically its provision § 44 paragraph 3, according to which the Civil Aviation Authority may limit or prohibit the use of airspace for a period of time that is absolutely necessary or permanently by a measure of a general nature of the Czech Republic to fly over certain areas, for reasons of state defense, for security reasons or for reasons of environmental protection.
After the adoption of the amendment to the Act on Nature and Landscape Protection, the Civil Aviation Authority did not delay and immediately in 2018 issued measures of a general nature for all four Czech national parks, in the near future the announcement of the fifth Czech national park, Křivoklátsko, is expected.
These measures of a general nature are issued in the form of a public decree and national parks as limited spaces are defined three-dimensionally by means of geo-coordinates and an upper boundary that makes 1 ft or 000 meters above the highest obstacle within 300 m of the aircraft. In this defined area, entry into the airspace is prohibited, with the exception of, in addition to the above, e.g. non-motorized aircraft flights or observation flights according to Open Skies Treaties.
Further exceptions may be made in the case of the existence of a legitimate interest after assessing the impact on the environment and depending on the expression of the user of the space, which in the given case are the administrations of individual national parks, allow the Civil Aviation Authority. The administrative authorities should therefore assess in each individual case whether the interests of the applicant for a flight in the limited area of the national are legitimate after assessing the impact on the environment.
Legal regulation of air traffic in other specially protected territories
As for the remaining categories of specially protected areas in relation to aviation law, such as protected landscape areas, nature reserves or natural monuments, flying over them is not prohibited by law and the Civil Aviation Authority has not yet resorted to restrictions on entering the airspace above them for these territories, as is the case with national parks, although the Civil Aviation Act practically allows it to do so according to the above-mentioned provision of Section 44, Paragraph 3 of the Civil Aviation Act. It should be noted, however, that unlike these remaining categories of specially protected areas, the Nature and Landscape Protection Act directly requires the adjustment of conditions for flights over national parks in the form of measures of a general nature. The situation is also different for unmanned systems, when the Civil Aviation Authority decided their operation inside all specially protected areas prohibit with reference to the provisions of § 44 paragraph 4 of the Act on Civil Aviation and permits exceptions only with the prior consent of the relevant nature protection authority[2]. Even so, flying over the remaining categories of specially protected areas is not without limitations, the Nature and Landscape Protection Act expressly forbids, for example, harmful interference with the natural development of specially protected animals or intentionally disturbing wild birds.
It should therefore be remembered that motor aircraft, especially helicopters, affect the environment mainly with their noise, which can negatively affect the behavior of many species of animals and lead to violations of the law, which can result in an offense for which the nature protection authority in this case saves a fine of up to CZK 20. In the remaining categories of specially protected areas, it is also necessary to comply with general air traffic regulations, which, for example, specify the minimum height for so-called VFR flights outside built-up areas[3] 150 meters above ground or water within 150 meters of the aircraft. Above densely built-up areas of cities, villages and other inhabited places, the minimum height is set at 300 meters above the highest obstacle within a radius of 600 m from the aircraft.
Takeoffs and landings
Another situation is taking off or landing in a specially protected area. The regulation in question can be found in the aforementioned Decree No. 108/1997 Coll. According to its provision § 14 paragraph 5 letter b) applies that take-offs and landings are allowed use only areas that are outside the territory of the national park, protected landscape area, national nature reserve, nature reserve, national natural monument and natural monument, unless the relevant nature protection authority has given its consent. In the case of national parks, the competent authorities of the parks are the already appointed administrations of individual national parks, e.g. Administration of the Krkonoše National Park. The Agency for Nature and Landscape Protection administers protected landscape areas, national natural monuments and national nature reserves. Regional authorities are then responsible for areas of nature reserves and natural monuments. Similar rules specifically for motorized sports flying devices can be found directly in the Civil Aviation Act, see its provision § 84d paragraph 2 letter b).
For cases of violation of aviation regulations in the section of flying over national parks and the rules for take-offs and landings in specially protected areas, the Civil Aviation Act also remembers the sanctioning provisions, when the violation of these rules is sanctioned equally by a fine of up to CZK 1. In addition to a fine, a misdemeanor can also be imposed penalty of prohibition of activity and offenses according to the jurisdiction are usually discussed by the Ministry of Transport or the Office of Civil Aviation.
Summary
A major amendment to the Civil Aviation Act of 2017 extended the ban on flying over national parks in such a way that the conditions set out by measures of a general nature which limit the restricted area airspace to the approximate boundaries of national parks and a height of 1 ft or 000 meters above the ground in a circle currently apply 300 meters from the plane. I evaluate the adoption of this amendment positively, as the ambiguities in the question of what can be subsumed under the term sightseeing flight have been removed. However, the administration of national parks and the Office of Civil Aviation must examine the legitimate interests of the applicant for entry into the airspace above national parks even more carefully.
Each case of a flight or several flights is thus assessed individually and the impact on the environment should be evaluated in terms of the noise and emission load of the aircraft, the presence of animals in the given area, the frequency of flights, the time of individual flights, the purpose of flights and landings, etc. For example, with the objection of the Administration of the Krkonoše National Park regarding the allegedly significantly negative impact on the protection objects of the Krkonoše Bird Area, the Office of Civil Aviation in the justification of the measure in question of a general nature[4] resolved that there was no evidence of a significant impact of air traffic on selected groups of animals. In the case of an intended landing or takeoff, an assessment of the impact on the flora in the area is also considered. In all cases, the administrative body is obliged to properly justify its decision and state the specific effects of each case on the environment. For the remaining categories of specially protected areas, neither the law nor the Civil Aviation Authority sets restrictions on the operation of aircraft, with the exception of unmanned systems, but even so, it is necessary to take care of the interests protected by the Act on the Protection of Nature and Landscape and not to disturb the life of the local fauna.
In the case of allowing exceptions to the ban on flights over national parks, the statement of the user of the space, i.e. the administration of the individual national park, is advisory in nature and the decision on the matter is issued by the Civil Aviation Authority. In contrast, take-offs and landings on areas located in specially protected areas only require the consent of the relevant nature protection authority.
To be request for an exception from the ban on flying over national parks or consent request with landings or take-offs in specially protected areas positively handled, we recommend already in the application describe all relevant facts discussing the purpose and frequency of flights, the type of flying equipment, as well as specific expected or unanticipated effects on the environment. Granting or not granting consent to land in specially protected areas is issued in a form a decision that can be appealed in the form of an appeal, the superior administrative authority in this case is the Ministry of the Environment. Also, the authorization of an exception to the ban on flights in restricted areas over national parks takes the form of an administrative decision, against which the applicant can appeal to the Ministry of Transport.
However, the expression of the user of the space, i.e. the administrations of the individual national parks, depending on which the Civil Aviation Authority issues the final decision to allow an exception to the ban on flights over the restricted airspaces of the national parks, is of a completely ambiguous nature. This is not a decision or a binding opinion, which could be challenged by standard remedies according to Act No. 500/2004 Coll., Administrative Code. Therefore, if the applicant's rights were abridged by this statement in connection with the fact that, in connection with this statement, the applicant would not receive permission for an exemption from the ban on flights over the restricted areas of national parks, it would be possible to defend against the illegality of such a statement in the framework of the proceedings for protection against illegal intervention according to the provisions of § 82 et seq. Act No. 150/2002 Coll., Administrative Code of Court.
Source: epravo.cz
Do you need advice regarding the legal regulation of air traffic in specially protected areas or in the field of aviation law in general?
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[1] KONEČNÁ, Michaela, HANÁK, Jakub. § 16 [Basic protective conditions of national parks]. In: VOMÁČKA, Vojtěch, KNOTEK, Jaroslav, KONEČNÁ, Michaela, HANÁK, Jakub, DIENSTBIER, Filip, PRÚCHOVÁ, Ivana. Nature and Landscape Protection Act. 1st edition. Prague: CH Beck, 2018, p. 177, marg. No. 41.
[2] General measure No. 13411-23-701 issued by the Civil Aviation Authority on 19/12/2023.
[3] "VFR flight" means a flight conducted in accordance with visual flight rules, see COMMISSION IMPLEMENTING REGULATION (EU) No 923/2012 of 26 September 2012 laying down common flight rules and operational regulations relating to services and procedures in the field of air navigation and amending Implementing Regulation (EC) No. 1035/2011 and Regulation (EC) No. 1265/2007, (EC) No. 1794/2006, (EC) No. 730/2006, (EC) No. 1033/2006 and (EU) No. 255/2010.
[4] Measures of a general nature No. 9823-18-701 of the Civil Aviation Authority of 24/9/2018.
