On January 4, 2020, as fire roared through Budgong west of Nowra, Scott and Annette Hogan watched with sinking hearts a live webcam feed from their house in Abernethys Road.
Flames could be seen through the windows dancing around the four bedroom home. When the feed went dead, the couple feared the worst.
"We were sure we'd lost it," said Scott Hogan.
It was not the case, however. The webcam feed was cut when thick smoke choked off the satellite NBN connection.
When he checked the webcam the next day he saw the house, built into a hillside and surrounded by deciduous trees, had survived the firestorm.
Ironically, it is unlikely to survive Shoalhaven City Council.
The couple has been locked in a costly dispute with the council since May 2019, when they were issued a stop-use order because the planning department could find no record of the dwelling ever being approved.
"We couldn't believe it," said Annette Hogan.
The Hogans engaged planning law specialist Michael McMahon, a former assistant registrar of the Land and Environment Court. With a bit of digging, he found the dwelling, constructed 45 years ago, did not require consent under the then interim development order.
He found on council files a memo from the then Shoalhaven Shire Town Planner dated May 20, 1977 stating no planning consent was required under an Interim Development Order. There is also a building permit dated June 19, 1977 on council files.
Mr McMahon says the property is covered by continuing lawful use rights. He sent this legal argument to council but there was no response for 18 months, during which time the fire had swept through, destroying neighbouring dwellings but leaving the Hogans' house unscathed.
When approached by Australian Community Media in October 2020, a council spokesperson apologised for the delay in responding to the Hogans' lawyer.
In an email to ACM on October 22, the spokesperson said: "The Hogans' unauthorised dwelling was in 'BAL-flame zone' and there were no bush fire protection measures. No one was living in the premises at the time and Council issued an emergency stop use order and a notice of intention to demolish the dwelling on 15/05/2019. An emergency order was necessary given the potential life threatening concerns.
"Council has today responded to the Hogan's solicitor. It is acknowledged that a reply should have been sent earlier."
The spokesperson also said council did not accept the home had a building permit.
"This actually relates to the building application for the dwelling on Lot 7 (BA77/0414) and not the unauthorised dwelling on Lot 87. The floor plans for BA77/0414 were checked by Council's Officers at the time of a subsequent inspection in August 2019. Unfortunately this building was destroyed by the Currowan bush fires in January 2020," the spokesperson said.
Mr McMahon said council was confusing the building permits.
"The one to which it refers was on another lot but still within the original parcel of land covered by the interim development order," he said.
Just before Christmas last year, the Hogans were served with notice from council of intent to issue a demolition order. They managed to gain an extension of notice which expired on April 1.
"It ruined our Christmas," said Annette. "With the holidays and our lawyer away, we had to seek an extension so we could fight it."
On February 15, 2021, the Hogans attended a preliminary call-over hearing in the Land and Environment Court.
The Hogans argued that in order to keep weeds under control, they needed to use the home. Annette Hogan said she also wanted to honour the final wish of her brother, Ian Rogers, who passed away in October. An advocate for Indigenous people in northern NSW, Mr Rogers had asked for a smoking ceremony to be held as a memorial on the property. Council's legal representative agreed to the suspension of the operation of the stop-use order.
In the mediation hearing before a Land and Environment Court commissioner on Monday, March 29, the Hogans pressed for their legal argument - that the home enjoyed continuous existing use rights - be ruled upon by a judge.
Council said it wanted the case to be heard over three days, with expert witnesses and judged on merit.
The Hogans, who estimate they have already spent more than $10,000 on legal fees, say they can't afford such a hearing, and nor should they be liable, when a ruling on the point of law can instantly put the matter to rest.
"Council is engaging in an act of bastardry, there's no other way of putting it," says Scott Hogan.
The lawyer agrees.
"All they need to do is revoke the stop-use order and end proceedings, then it's all over, red rover," Mr McMahon said.
The Hogans bought the property in 2015. During the conveyancing period they found nothing that suggested there was anything amiss with it.
After the stop-use order was issued in May 2019, through a Government Information (Public Access) or GIPA request, they discovered council had signed off on the connection of a new septic tank in the late 1990s, with no indication the dwelling to which it was attached was unlawful.
"When we raised this with council we were told, "Oh, we were really busy back then, we just waved these things through'," says Annette Hogan.
They also discovered on the file complaints from a neighbour from 2008 and 2012, years before the Hogans bought the property, about a driveway and deck that had sat on the file unactioned for years.
"The extraordinary thing about this whole episode is that council is pushing to demolish the one house in the area that was not destroyed by bush fire," Scott Hogan said.
They said they had suffered enormous stress throughout the whole episode.
"I've been taken to hospital with heart problems," said Scott. "It's affected our son, who had lived at the house. He's had to live with us the entire time. The house was his primary place of residence."
The toll has been terrible, said Annette Hogan.
"We're extremely stressed. We had fire, a flood, the pandemic, looking after my dying brother, and this fight with council," she said.
"I'm a pretty strong person but after this I feel devastated. It's been one thing after another. I feel like walking away."
In a statement issued on Wednesday, April 7, a council spokesperson said Shoalhaven City Council had the upmost empathy for residents impacted by the recent bushfire and flood events across the region.
"We are working hard to support the trauma residents are dealing with every day and prioritising future bushfire safety across the region. Council is committed to ensuring what remains after the tragic events of 2020 is safe both now and for generations to come.
"In the specific issues raised by landowners at Budgong, Council acknowledges that orders have been issued with safety a critical concern. We are committed to working collaboratively with the landowner and their legal team to resolve the matter, which is currently before the Land and Environmental Court."