Taking this step by step:
1. The Strata Manager can’t order the OC to reinstate the garden (unless he has extensive delegated powers and is standing in the shoes of the OC).
It is up to the EC and/or the OC to decide what they want to do about it. They have a number of options – they could decide to do nothing, or they could decide that it is a breach of a by-law (refer below) and issue the owner with a notice to comply telling them to reinstate the garden. As a formal complaint was made, the EC does have a duty to consider that complaint and make a decision about it. The OC doesn’t necessarily have a duty to reinstate the garden.
2. Under the standard by-laws, the owner ripping up the common property garden and planting vegetables is a breach of by-law 4, you should have something along those lines.
4 Damage to lawns and plants on common property
An owner or occupier of a lot must not, except with the prior written approval of the owners corporation:
(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or
(b) use for his or her own purposes as a garden any portion of the common property.
3. Why is everyone too scared to hold the person who did it accountable? Does it not bother anyone?
4. Yes, you can retrospectively grant exclusive use. What you would be doing is asking the owners corporation to approve what the owner had done, i.e. the damage to the common property, and then approving a by-law giving that owner exclusive use of that area, which would include that owner being responsible for the upkeep of that area, most likely in perpetuity. Any costs associated with drafting and registering the by-law should be met by the person benefitting from the by-law, i.e. the owner who pulled out the garden.
There are some things you need to consider if you want to go down that path. Essentially you would be giving the owner a part of the common property that is currently owned by all of you. That property has value. I wouldn’t agree to that unless the owner paid an amount of money representing that value. You would also need to consider where the area is and if others need to pass through it or access it, because if that is the case and the owner has exclusive use, that makes things difficult.
Personally I would not agree to something like that because essentially you would be rewarding somebody for doing something that is wrong. Following that logic someone else could come along and do the same thing, and expect to be given another piece of common property.
5. There is another option which is probably the simplest. The OC can reinstate the garden, and bill the owner for the cost of reinstatement. This would likely follow after you have issued a notice to comply, if the owner failed to reinstate the garden. If necessary, you could then seek an order from the CTTT, which may include a penalty for the breach.
As a general observation, it puzzles me why owners feel reluctant to pull owners up when they breach by-laws, specifically those relating to damage to common property. We are currently dealing with someone who has done quite a lot of damage to the common property, despite being told 3 times that they must not. Some of the owners feel that we shouldn’t rock the boat, and it will cause disharmony. To me that just means that the owner is likely to do it again, when they are the one causing disharmony.