It is the “Notch”, which the neighbour is seeking to build upon.
You are correct that it is a relatively simple matter that if the passageway existed access is required, then he cannot obstruct that right.
Whether the right is obstructed as a matter of fact and each case is looked at on its facts. For the right-of-way to be obstructed, the obstruction must be “substantial”. There is no definition of substantial. If the access is required for turning, then if he builds on the land and it prevents you doing what you’ve been doing, then the obstruction is substantial.
If he put a wheelie bin on the land it may not be a substantial obstruction but if he parked or built on the land it is likely to be.
You need to register your objection with him now in writing and ask him to stop pending a resolution because if he then carries on, and blocks the right-of-way you need, the court can order him to remove the obstruction if he carried on building regardless.
Even if there is only the right-of-way on foot in the deeds and there is no mention of vehicles, if vehicles have been using this land for over 20 years, then the right-of-way exists by virtue of the Prescription Act which gives the right over and above the right on foot.
The difficulty for you and for him is that these kind of claims are expensive if it gets all the way to court. He may not be allowed to do what he’s doing but if he just ignores your protestations regardless, your only remedy is to go to court.
In respect of that, check your house insurance to see if you have legal expenses cover that would pay for any legal costs. If you do have legal expenses cover, pass this on to the insurer.
Can I clarify anything for you?
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