[Tagging] Examples at https://wiki.openstreetmap.org/wiki/Key:access

[Colin Smale]

On 2020-05-29 15:46, Kevin Kenny wrote:

> On Fri, May 29, 2020 at 6:32 AM Colin Smale <colin.smale at xs4all.nl> wrote: 
> 
>> In the UK (especially Scotland) land ownership is pretty absolute. Every bit of land is owned by someone, even if that owner is The Crown. The owner has an absolute right to determine who has right of access, except for certain cases, like a Public Footpath or designated open access land that falls under the "right to roam" legislation. A person's house and driveway does not fall under these exceptions, so there is no right of access, except with the landowner's permission. So here we have "access=private". That does not mean you cannot knock on the door, or deliver a parcel however; whether by so doing you are committing civil trespass is not a priori clear - it depends on the circumstances; modelling all these circumstances in OSM is an enormous challenge that I don't think we are looking to solve here.
>> 
>> Despite private ownership, the exceptions I mentioned (public highway, open access) are "access=public" AKA "access=yes". It is illegal to prevent access.
>> 
>> Of course there are rules and limitations in all cases as to the type of access: public footpaths are deemed to be ±1m wide and access is only granted to pedestrians, not to motor vehicles for example.
>> 
>> I believe that there is a defence to trespass on the grounds of "custom"
>> which IMHO would cover deliveries to your door, or someone needing
>> emergency help, or door-to-door salesmen (all in the absence of explicit
>> signing to the contrary of course).
> 
> _Mens rea_, at least in most of the US, is an element of criminal
> trespass, and the liability for the civil tort of trespass is limited
> to actual damages in most cases. Since most of the key definitions in
> this part of the Common Law were established before our legal systems
> diverged, I imagine that is so in the UK as well. If you haven't
> damaged property by your unauthorized presence, and you haven't been
> told that land is private or invaded the curtilage of a dwelling, the
> owner has no cause of action. In effect, all they can do is to demand
> that you leave; the cause of action doesn't arise until you fail to
> comply.

In the UK it is apparently not required to demonstrate actual damage: 
https://www.inbrief.co.uk/land-law/trespass/ 

You might like to peruse this document, which is an explainer for
members of parliament: 
https://researchbriefings.files.parliament.uk/documents/SN05116/SN05116.pdf


If any actual damage is done however, then the damage itself may
constitute a criminal offence ("Criminal Damage"). 

As trespass is a civil tort the police won't turn out to help. You (the
landowner) will have to take the trespasser to court, which is an
inalienable right. The question is then, how will the magistrate think?
What makes a valid claim, and what is a valid defence? As it is not a
criminal case, I am not sure if mens rea comes into it. But the "intent"
will definitely influence the court. As they say, ignorance [of the law]
is no excuse; so pleading that you did not realise it was private
property or that you were not allowed to be there will not help,
possibly unless you claim that you has misread the boundary on a map,
for example. Walking across what is clearly someone's garden and then
claiming you thought it was open-access land is not going to get you
anywhere, I suspect.
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