Hyperparameter searching when there is no development set

I have a train and a test set and no development (dev) set. I’m training a model on the train set and searching for the best hyperparameters that can eventually maximize the accuracy of the test set (pretty much a normal machine learning scenario). Here is my confusion: we usually do the hyperparameter tuning on the development set (not test set) to find the best hyperparameters, then we use those best hyperparameters to train our model and finally test it on the test set. I have two questions though when there is no dev set:

• Is it problematic if we do hyperparameter searching on the test set? One may say, it is obviously problematic, but I say the hyperparameter searching is like every time training a model from scratch using a combination of hyperparameters and pick the best combination, and it’s not like that the model is learning from previous hyperparameter searches, so is this still problematic?
• If the first option is problematic, should I just break my train set into train+dev set and then use the dev for hyperparameter searching?