Petrol retailers could unknowingly break the law by selling hot food throughout the night if they fail to fork out £775 for a premises licence under the new licensing regime.

The government’s failure to focus on the late night refreshment angle in its draft legislation means that many retailers could be unaware of the new law.

It appears that forecourts have got caught up in legislation that is more aimed at late night cafés and kebab shops, which can attract trouble late at night.

Robert Botkai, head of property and licensing at solicitors Winckworth Sherwood, said: “If a forecourt wants to sell a hot pasty between the hours of 11pm and 5am, they’re not causing big queues on the street or attracting trouble, but they’ve got dragged into the licensing system. We’ve taken it up with the government because we think it’s got it wrong.”

The costs of applying for premises licences with the accompanying documents, subsequent renewals and variations are unlikely to be met by the profit to be gained from providing a late night refreshment service to the community. “This may result in numerous forecourt stores ceasing to provide late night refreshment,” said Botkai.

It is also unclear whether late night refreshment constitutes a variation. “Few local authorities currently have a night café regime,” said Botkai. “If we apply to convert a licence for a store which sells hot food and/or hot drinks during the night but is not covered by a night café licence, does this constitute an application to vary the premises licence to introduce a new licensable activity?

“If this is the case, the application presumably needs to be advertised, both on the premises and in the local newspaper. I suspect there will be inconsistency from councils as to whether this is a variation.”

The late night refreshment concerns were highlighted when the government announced its proposed fees last month. As expected the fees will be based on rateable values of the property but the way they have been banded means that most forecourts will fall into the top band.

The proposed fees would mean that big entertainment venues who currently pay several thousand pounds a year in licensing fees would pay the same as a petrol retailer.

“It’s unfair given the amount of alcohol sold by petrol forecourts is relatively small compared to a city centre nightclub,” said Botkai. “It ignores the fact that some larger premises have activities which are primarily not licensable.”

The top band – for premises with a rateable value of £125,001 or more – will be required to pay £500 for a premises licence or conversion of an existing licence, plus an annual maintenance fee of £225. Under the current system there is a renewal fee of just £30 every three years. “Having been promised a cheaper and less bureaucratic regime, we’ve got the opposite,” added Botkai.

There are a lot of applications within the new licensing system that will attract fees. Every time a licensee varies their licence – to extend opening hours for example – they will be required to pay another £500. To vary a premises licence to name a new designated premises supervisor will cost £23; an application for a provisional statement £195; and notification of change of name or address by a personal licence holder £10.50.

The Association of Convenience Stores has branded the proposed fees “too high and too late”. Chief executive David Rae said: “Rateable value alone is not a fair means of determining fee bands. These fees will start to be used from February next year which is an unacceptably short amount of time for retailers to plan ahead.”

The industry has until December 23 to submit comments to the DCMS.