There is nothing to stop you paying the court fee yourself and litigating yourself. If the other party uses solicitors and your claim is not successful, they can claim solicitors costs against you.
What you have been told is not strictly correct. You tell the other person that if they don’t regularise the situation, and make the access a reasonable width, you will apply to court for a court order to determine the matter. If they just ignore it or refuse, you have no option but to go to court.
If you simply went to court without warning them, you could get penalised with regard to costs even if you were successful in getting the court order.
If he is building over a right-of-way which is a shared access, he is restricting that right-of-way. The court would also look at whether the restriction is substantial or not. For example, a wheelie bin which obstructs a drive which is 24 foot wide is not substantial obstruction. However on a path which is 1.5 m wide it is substantial. Therefore it comes down to the facts and evidence as to whether this is a substantial obstruction. Notwithstanding the dimensions, the fact that it has come down in size by such a large amount, I’m of the opinion that the judge would find it to be a substantial obstruction.
If he has not started building, it depends whether he also wants to risk many thousands of pounds just for the tiny amount of extra building.
Thank you. Unfortunately, then it’s unlikely that you are going to get anything out of the neighbour than compensation if this goes to court. It is unlikely that the court would make him tear the wall because you have let him do this without taking any action. The court look at this is that you should have made the application as soon as the plans were submitted error if it wasn’t evident from the plans, as soon as he started digging the foundations. Then you could possibly have got it moved but it’s unlikely now.
You have a solution albeit that you lose some land but you would be entitled to be compensated for that land.
The argument now is just over that cost. It depends how valuable that piece of land is to you and what the quality of defence that he is going to put up is. What you would need to do is grant a licence over that piece of land if you are retaining it and he is not buying it from you, so that you could always grab it back at some stage in the future.
One of the thing the neighbour seems to be missing is that if you did the same thing as he’s done, I imagine the right-of-way would disappear altogether. How would he feel about that?