Winitb, be careful about going down the ultra vires route.
HSE is the enforcing authority for construction sites as regards RRFSO as amended.
Enforcing authorities
25.— [F1(1)] For the purposes of this Order, “enforcing authority” means—
(a)the fire and rescue authority for the area in which premises are, or are to be, situated, in any case not falling within any of sub-paragraphs (b) to (e);
(b)the Health and Safety Executive in relation to—
F2(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii)a ship, including a ship belonging to Her Majesty which forms part of Her Majesty's Navy, which is in the course of construction, reconstruction or conversion or repair by persons who include persons other than the master and crew of the ship;
[F3(iv)any workplace which is, or is on, a construction site, other than one in relation to which the Office for Nuclear Regulation is responsible for health and safety enforcement;]
[F4(bb)the Office for Nuclear Regulation in relation to—
(i)any premises for which a licence is required by virtue of section 1 of the Nuclear Installations Act 1965 or for which a permit is required by virtue of section 2 of that Act;
(ii)any premises for which such a licence or permit would be required but for the fact that the premises are used by, or on behalf of, the Crown;
(iii)any workplace which is, or is on, a construction site in relation to which the Office for Nuclear Regulation is responsible for health and safety enforcement;]
(c)the fire service maintained by the Secretary of State for Defence in relation to—
(i)premises, other than premises falling within paragraph (b)(iii), occupied solely for the purposes of the armed forces of the Crown;
(ii)premises occupied solely by any visiting force or an international headquarters or defence organisation designated for the purposes of the International Headquarters and Defence Organisations Act 1964 F5;
(iii)premises, other than premises falling within paragraph (b)(iii), which are situated within premises occupied solely for the purposes of the armed forces of the Crown but which are not themselves so occupied;
(d)the relevant local authority in relation to premises which consist of—
(i)a sports ground designated as requiring a safety certificate under section 1 of the Safety of Sports Grounds Act 1975 F6 (safety certificates for large sports stadia);
(ii)a regulated stand within the meaning of section 26(5) of the Fire Safety and Safety of Places of Sport Act 1987 F7 (safety certificates for stands at sports grounds);
(e)a fire inspector, or any person authorised by the Secretary of State to act for the purposes of this Order, in relation to—
(i)premises owned or occupied by the Crown, other than premises falling within paragraph [F8(bb)(ii)] and (c));
(ii)premises in relation to which the United Kingdom Atomic Energy Authority is the responsible person, other than premises falling within paragraph [F9(bb)(ii)] ).
[F10(iii)a prison within the meaning of the Prison Act 1952;
(iv)custodial premises provided under section 43 of the Prison Act 1952 (places for the detention of young offenders etc.);
(v)premises which are for the time being approved under section 13(1) of the Offender Management Act 2007 (approved premises);
(vi)accommodation provided by a court and used for the detention of persons who have been sentenced to imprisonment or detention or remanded in custody;
(vii)a removal centre, pre-departure accommodation or short-term holding facility within the meaning of section 147 of the Immigration and Asylum Act 1999 (interpretation of Part VIII);
(viii)a customs office designated under section 35(1) of the Police and Criminal Evidence Act 1984 as applied and modified by articles 12 (application of the Police and Criminal Evidence Act 1984) and 22 (modification of section 35 of the Act (designated police stations)) of the Police and Criminal Evidence Act (Application to immigration officers and designated customs officials in England and Wales) Order 2013;
(ix)an office of Revenue and Customs designated under section 35(1) of the Police and Criminal Evidence Act 1984 as applied and modified by articles 3 (application) and 10 (modification of section 35 of the Act (designated police stations)) of the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015.]
[F11(2) For the purposes of paragraph (1)—
(a)“construction site” means a construction site, as defined in regulation 2(1) of the Construction (Design and Management) Regulations [F122015], to which those Regulations apply, other than one to which regulation [F1236] of those Regulations applies;
(b)the Office for Nuclear Regulation is responsible for health and safety enforcement in relation to a construction site if, by virtue of regulations under section 18(2) of the Health and Safety at Work etc. Act 1974 (enforcement), it is responsible for the enforcement of any of the relevant statutory provisions (within the meaning of Part 1 of that Act) in relation to the site.]
As regards quoting the Construction (HSW) Regs 1996, HSE could simply reissue the notice of FFI quoting the equivalent part of CDM 2015, though you would have a very good case for appeal against the size of the FFI if they attempted to charge for extra time spent on remedying a blunder in the original notice.
So, you might want to take the diplomatic route of politely asking whether the Inspector knew what law they were referring to if they have quoted a revoked code of regulations.
But your appeal should probably mostly be decided on the facts and the evidence collected by HSE. If this Inspector is quoting regulations that were revoked 13 years ago, then may be they don't have sufficient evidence to support a notice of FFI.
In theory if HSE takes enforcement and it results in unjustified costs to your business, you could sue HSE.
I once had a wise Principal Inspector in HSE whose advice to me was that if I was unsure of my grounds, then the route forward would be via prosecution rather than Improvement Notice or Prohibition Notice. Arguably the same principle might apply to a notice of FFI.
Any costs against HSE in relation to an unsuccessful prosecution would be likely to be small compared with downtime etc associated with an inappropriate Notice.
Good luck, Peter